“Walking on Thin Ice”

Map of China

I. Summary

The rule of law is important for the promotion, realization
and safeguarding of a harmonious society. This principle should be rigorously
implemented in all political, administrative and judicial sectors to ensure the
powerful be checked and accountable for their misdeeds.

The development of a strong, independent legal profession in
China
is critical to the promotion and protection of human rights. Lawyers serve a
critical function in the administration of justice, a point recognized by China's top leaders themselves,[3] as well as the
large international legal reform community working in China.

Over the past two decades, the Chinese Communist Party (CCP)
has progressively embraced the rule of law as a key part of its agenda to
reform the way the country is governed. Importing entire pieces of
Western-style legal institutions, the CCP is in the process of establishing a
modern court system, has enacted thousands of laws and regulations, and has
established hundreds of law schools to train legal professionals. It has
publicized through constant propaganda campaigns the idea that common citizens
have basic rights, elevated the concept of the "rule of law" to constitutional
status, and recognized the validity of human rights norms with a new
constitutional clause stipulating that "the state respects and protect human
rights."

Yet, Chinese lawyers continue to face huge obstacles in
defending citizens whose rights have been violated and ordinary criminal
suspects. This report shows that lawyers often face violence, intimidation,
threats, surveillance, harassment, arbitrary detention, prosecution, and suspension
or disbarment from practicing law for pursuing their profession. This is
particularly true in politically sensitive cases. Lawyers are often unable to
seek redress for these threats and attacks as law enforcement authorities
refuse to investigate abuses, creating a climate of lack of accountability for
actions against members of the legal profession.

Instances of abuse by the national government or local
authorities against lawyers have disproportionately affected lawyers who are
part of the weiquan, or "rights
protection" movement, a small but influential movement of lawyers, law experts,
and activists who try to assert the constitutional and civil rights of the
citizenry through litigation and legal activism. Weiquan lawyers represent cases implicating many of the most
serious human rights issues that beset China today: farmers whose land has been
seized by local officials, urban residents who have been forcibly evicted,
residents resettled from dam and reservoir areas, victims of state agents' or
corrupt officials' abuses of power, victims of torture and ill-treatment,
criminal defendants, victims of miscarriage of justice, workers trying to
recoup unpaid wages and rural migrants who are denied access to education and
healthcare.

As one lawyer told Human Rights Watch:

All lawyers in China face the same constraints.
What makes weiquan lawyers special is
that they try to break free from these constraints, and they pay the price for
it.[4]

There are also many structural reasons for the vulnerability
of lawyers and the weak status of the legal profession. First and foremost is
that lawyers and the entire legal system operate within a one-party political
system. The legal profession in China,
like the judiciary, is still far from attaining either formal or functional
independence. More specific but related reasons most often cited by Chinese and
foreign scholars are that legal reform is relatively recent, beginning only two
years after the end of the Cultural Revolution, in 1978; the even more recent
emancipation in 1996 of the legal profession from the Ministry of Justice, when
the first Law on Lawyers was promulgated; the fact that bar associations remain
under the control of the judicial authorities, which in turn remain under the
control and supervision of Communist Party organs; and that the ability of
citizens to challenge or sue the government is a very recent development (laws allowing administrative litigation and state
compensation date only from 1989 and 1994, respectively).

Lawyers routinely identify lack of independence from the
government as the key structural challenge facing their profession. As a
comprehensive study on lawyers published in 2005 by the Shanghai Academy of
Social Sciences Press points out, "The core question in the reform of the legal
profession is the self-governance of the profession. Lawyers should
independently carry out their professional duties and not be subjected to
interference from state organs, groups or individuals."[5]

Even the objectives and functions of legal aid structures
remain closely directed by the judicial authorities. In one typical speech in
October 2007, the vice-minister of justice in charge of the administration of
lawyers called on the judicial bureaus to "strengthen the direction of legal
service employees and legal aid workers" to implement the objectives set by Party
leaders,[6] reaffirming that
"the key point in the work of lawyers is their role in contributing to the
stability of a harmonious society,"and that lawyers
"must support the leadership of the Party at all times."[7]

For all these reasons, lawyers are reluctant to work on
politically sensitive cases, in particular human rights cases. Lawyers face
powerful incentives to avoid work that is perceived by the CCP and government
authorities as a threat or as a potential source of embarrassment, including
work on cases seeking redress for abuses of power or wrongdoings committed by
state or Party authorities. The result is not only abuse of lawyers, both
physically and professionally, but a setback for the rule of law and the
administration of justice. It also contributes to continuing public unrest as
those with political or economic power, both inside and outside the CCP, trample
on the rights of average citizens.

China's
top leaders now routinely state their commitment to the rule of law. In his report to the 17th
Party Congress in October 2007, President Hu Jintao stressed that "the
rule of law constitutes the essential requirement of socialist democracy," and
pledged to "respect and safeguard human rights, and ensure the equal right to
participation and development for all members of society in accordance with the
law."[8]

In a one-party system intent on keeping its hold on
political power–and in the absence of other independent checks on power such as
a free press or an autonomous civil society–this formidable effort at
establishing the rule of law is aimed at providing stability and predictability
to a rapidly modernizing society, supporting economic development, and imparting
legitimacy to the Communist Party and government. Party and government
officials have repeatedly stressed the need to develop the legal profession as
part of their stated commitment to rule of law, and extolled the role that
lawyers can play in the resolution of social contradictions to serve the
overall political goal set by Hu Jintao of constructing a "harmonious society."[9]

There
have also been benefits for ordinary Chinese. Lawyers are playing a greater
role than ever in resolving ordinary disputes and representing victims of human
rights abuses. They have helped gain recognition of grievances, promoted legal
awareness among victims of abuses, advanced consumer rights, provided legal aid
and counsel in both judicial and non-judicial settings, fostered better
compliance with statutory requirements from law enforcement agencies and
courts, and monitored the enforcement of judicial decisions.

If China's
legal reform is to reach the next level, however, authorities need to act much
more decisively to remove the obstacles that continue to prevent lawyers from
playing their proper role. Lawyers' exercise of their profession-including
their vigorous defense of controversial clients and causes-requires increased
professional autonomy and protection against arbitrary interference by other
judicial system actors, particularly though not exclusively in politically
sensitive cases. As this report demonstrates, China still has a long way to go to
lift arbitrary restrictions on lawyers and establish genuine rule of law.

Key recommendations

Human Rights Watch urges the Chinese government to address
the plight of lawyers and the legal profession by:

·Immediately releasing all lawyers arrested,
detained, or under supervision as a result of their professional activities,
including as human rights defenders;

·Ending all officially sponsored attacks on
lawyers and holding the perpetrators of such attacks accountable under the law;

·Making lawyers associations fully independent, insulated
from interference by Party officials, security officials, and the Ministry of
Justice;

·Repealing aspects of annual bar registration for
lawyers which allow judicial system authorities to put pressure on and
arbitrarily retaliate against lawyers for political and other reasons;

·Revising key laws and regulations governing the
legal profession to bring them into accordance with international standards;

·Ensuring that arbitrary restrictions are not
placed on the press in the coverage of politically sensitive cases; and

·Ensuring that lawyers, like other citizens, are able
to exercise their rights to freedom of expression, belief, association, and
assembly.

Human Rights Watch also urges key international
interlocutors of the Chinese government and Chinese legal community to press
the government to keep its commitments to law reform, professionalization of
the legal community, and the rule of law. Large sums of money are allocated every
year by foreign governments and international organizations to legal aid to China.
While these efforts are laudable, their efficacy will remain minimal if
restrictions on lawyers identified in this report are not lifted, and the
internal dynamic of legal reform thus continues to be unnecessarily held in
check. Key international interlocutors should also urge the Chinese government to
issue an invitation to the United Nations special rapporteur on the independence
of judges and lawyers to assess the situation of the legal profession and the
judiciary.

More detailed recommendations, as well as more immediate
steps the Chinese government can take, appear at the end of this report.

Methodology

This report is based on field research conducted over 12
months in Beijing, Shanghai,
and Guangzhou. The
research included extensive review of Chinese language sources-including news
accounts, official publications, and scholarly journals-discussions with scores
of experts and analysts both inside and outside China, and 48 in-depth interviews
with Chinese lawyers, legal experts, rights activists, and journalists with
firsthand knowledge of the cases and issues covered in this report.

The scope of this study is necessarily limited by research
constraints in China.
China
remains closed to official and open research by international human rights
organizations. Over the years, Human Rights Watch has received numerous reports
of the detention and interrogation of Chinese activists and scholars, including
a number of lawyers, because of their contact with international human rights
groups. As this study documents, many Chinese lawyers working on human rights
or civil rights cases are closely monitored, and some have been interrogated or
detained for their work.

As a result, unless otherwise noted, Human
Rights Watch has replaced interviewees' names with initials
which are not the interviewees' actual initials, and has not included other information
that could be used to identify the interviewees. Interviews were conducted in
settings that were as private as possible. All interviews in China were conducted in Mandarin
without the assistance of interpreters.

Human Rights Watch takes no position on the underlying
merits of the legal cases mentioned in this report, but rather focuses on what
happens to lawyers who become involved in them.

II. International Standards for Lawyers

The independence of lawyers is a fundamental principle of
international law. Lawyers play a key role in the administration of justice and
protection of human rights. The importance that the international community
places upon the independence of the judiciary and of lawyers is evidenced by
their prominence in numerous international and regional treaties,[10]
United Nations (UN) resolutions,[11]
and international statements,[12]
to many of which China has
agreed, such as the Beijing Basic Principles on the Independence of the Judiciary.[13]

China
has also signed but not yet ratified the International Covenant on Civil and
Political Rights (ICCPR). Many of its provisions are part of international
customary law. Among other things, the ICCPR recognizes the right to counsel,
the principle of equality before the courts, and the right to a fair and public
hearing by an independent court established by law.[14] The
United Nations Human Rights Committee, which oversees implementation of the
ICCPR, stated in its General Comment that "[l]awyers should be able to counsel
and to represent their clients in accordance with their established
professional standards and judgment without any restrictions, influences,
pressures or undue interference from any quarter."[15]

The most detailed exposition of the rights and
responsibilities of lawyers is found in the United Nations Basic Principles on
the Role of Lawyers.[16]
Among other things, the Basic Principles provide for:

·The independence of lawyers: "Adequate
protection of the human rights and fundamental freedoms to which all persons
are entitled … requires that all persons have effective access to legal
services provided by an independent legal profession."[17]

·Freedom of expression and association: "Lawyers
shall be entitled to form and join self-governing professional associations …
The executive body of the professional associations … shall exercise its
functions without external interference."[18]

·Confidentiality of communications between
lawyers and their clients: "Governments shall recognize and respect that all
communications and consultations between lawyers and their clients within their
professional relationship are confidential."[19]

·Protection from unlawful interference:
"Governments shall ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or improper
interference; (b) are able to travel and to consult with their clients freely
both within their own country and abroad; and (c) shall not suffer, or be
threatened with, prosecution or administrative, economic or other sanctions for
any action taken in accordance with recognized professional duties, standards
and ethics."[20]

·Right to due process for lawyers facing
disciplinary sanctions: "Lawyers shall be brought before an impartial
disciplinary committee established by the legal profession, before an
independent statutory authority, or before a court, and shall be subject to an
independent judicial review."[21]

In addition, "The accused or his lawyer must have the right
to act diligently and fearlessly in pursuing all available defenses and the
right to challenge the conduct of the case if they believe it to be unfair."[22]

These principles are now commonly referred to in academic
legal studies in China,
although they have not been incorporated into domestic law.[23]

III. China's Legal Profession

The President of the Supreme People's Court has issued important
written instructions: courts at all levels must respect the professional rights
of lawyers according to law…. and jointly protect fairness and justice.

The development of the legal profession

China's
recognition that a functioning legal system is necessary to support economic
development, its accession to the World Trade Organization, and external
pressure for a rules-based system for business have resulted in significant advances for the
legal profession. The number of lawyers has surged dramatically over the
past 20 years. In 1986 there were about 21,500 lawyers. This more than doubled
to 45,000 by 1992, as the first private law firms emerged, largely to service
the growing private business sector. There are now around 143,000 lawyers and 13,000
law offices.[26]Local bar
associations have become more vocal in promoting the rights and interests of
the legal profession. Academic debates and the internet have contributed to
legitimizing the role and value of lawyers in society.

However, the dramatic increase in the number of lawyers has
not yet been accompanied by the establishment of an accessible, equitable legal
system. Vast numbers of Chinese citizens are still unable to use the system to
seek justice. The proportion of lawyers to the total population remains low, at
just 0.9 per 100,000.[27]The distribution of lawyers and law
firms is disproportionately skewed towards the largest metropolises, such as Beijing, Shanghai, and Guangzhou, with few
services available in the western and interior part of the country. Lawyers
also remain oddly outnumbered by judges and prosecutors: in 2004 there were
190,000 judges and 125,000 prosecutors.[28]

The role of lawyers under Chinese law

Lawyers are regulated by the Law on Lawyers of the People's
Republic of China
(hereafter, the Law on Lawyers). This is the primary, but not the only, statute
governing the legal profession. It was revised in October 2007 in part to strengthen
the rights of lawyers in legal proceedings, but failed to offer better avenues
of redress when these rights are violated. Although the revised law will become
effective on June 1, 2008, some of its most crucial advances depend ultimately
on the revision of now conflicting provisions in the Criminal Procedure Law,
which takes precedence over the Law on Lawyerswhen the two are in conflict.

The crucial issue of the lack of independence of the
profession remains unchanged. Under Chinese law, lawyers are not free to form
their own professional associations. Lawyers, law firms, and bar associations
remain under the authority of the Ministry of Justice (MOJ), which gives them
"supervision and guidance."[29]
The All-China Lawyers Association (ACLA), the Chinese equivalent of a national
bar association, is nominally in charge of "self-governing" the profession, but
it too is subordinated to the MOJ.[30]

The ACLA and its local branches must comply with
instructions issued by the MOJ, and must regulate the profession in accordance
with the directives of the MOJ's department in charge of lawyers, the "Lawyers
and Notaries Bureau." All lawyers must join the local branch of the ACLA in
order to practice,[31]
and joining the local branch also means being a member of the ACLA.[32] The head and
secretary of the local lawyers association are generally chosen by local
judicial authorities.[33]

Lawyers and law firms are therefore placed under a system of
joint authority by the MOJ and by the MOJ-controlled lawyers associations. The judicial bureaus, the branches of the
Ministry of Justice at the local level, assume "macro-control," including guidance,
admissions, administration, and coordination, while the lawyers associations
assume "micro-control" of body structure, professional duties, daily affairs,
training, and education.[34]
Disciplinary proceedings against lawyers by the MOJ or lawyers associations are
not subject to independent judicial review.

The emergence of the weiquan movement

Partly in response to the inadequacy of legal remedies for
large swathes of the Chinese people, who seem to have few avenues other than
bringing their grievances to the streets, a movement of lawyers, law experts,
and activists who try to assert the constitutional and civil rights of the
citizenry through litigation and legal activism has emerged in past five to six
years. The self-named "rights protection movement" (weiquan yundong) remains highly informal, and is mainly
characterized by its willingness to take up and publicize cases that are
politically sensitive because they involve citizens with grievances against
local governments or state agencies.

"In essence," a recent academic study of the movement says,
"lawyers and activists in the weiquan
movement are generally always on the side of the weaker party:(migrant) workers v. employers in labor
disputes; peasants in cases involving taxation, persons contesting
environmental pollution, land appropriation, and village committee elections;
journalists facing government censorship; defendants subject to criminal
prosecution; and ordinary citizens who are discriminated against by government
policies and actions."[35]

By circulating articles, maintaining web pages, and
mobilizing internet communities, concerned journalists and scholars, and the
foreign media, members of the rights protection movement frequently expose the
lack of legality in local government decisions and lack of credibility in
central government claims to "ruling the country according to law."

Weiquan lawyers
and activists are often openly critical of the deficiencies of the legal
system, and in particular of the lack of independence of the judiciary. At the
same time, the hallmark of the movement has been to keep all activities
strictly within the realm of Chinese law.[36]
Along with other legal activists, weiquan
activists have been involved in providing legal advice in a number of
high-profile cases of protests, such as those in Taishi (Guangdong
province), Tangshan (Hebei),
and Zigong (Sichuan), which have attracted widespread
attention, including from the international media.[37]

Weiquan has now
become the term now typically used in China to identify the type of legal
activities commonly referred as "cause lawyering," or public interest legal work.[38]

IV. Legal
Rule and Party Rule: A Deliberate Contradiction

All law-enforcement activities should be led by the Party.
All reform measures should be conducive to the socialist system and the
strengthening of the Party leadership…. The correct political stand is where
the Party stands."

-Luo Gan, Head of the Political and Legal Committee,
February 1, 2007[39]

The power of the courts to adjudicate independently doesn't
mean at all independence from the Party. It is the opposite, the embodiment of a
high degree of responsibility vis-à-vis Party undertakings.

-Xiao Yang, President of the Supreme People's Court,
October 18, 2007[40]

China's
top leaders have acknowledged that greater demand for rights protection and
many social protests are responses to local government abuses, and have
promised to enhance access to judicial and administrative remedies, reiterating
at every opportunity their commitment to the rule of law.

In
October 2007 President Hu Jintao pledgedin his report to the 17th Party Congress to
"build a fair, efficient and authoritative socialist judiciary system to ensure
that courts and procuratorates [the Procuracy offices] exercise their
respective powers independently and impartially in accordance with the law."[41]

Premier
Wen Jiabao has made many similar statements. In January 2006, he acknowledged
that "some localities are unlawfully occupying farmers' land and not offering
reasonable economic compensation and arrangements for livelihoods, and this is
sparking mass incidents in the countryside."[42]In March 2006, he promised "effective legal services and
legal aid so as to provide effective help to people who have difficulty filing
lawsuits," and a "strict, impartial, and civilized enforcement of the law."[43]And in March 2007, he pledged to
"do a good job … in providing legal services" and more specifically called onlaw enforcement agencies to "exercise
their powers and carry out their duties in strict accordance with legally
specified limits of authority and procedures" and "accept
the oversight of the news media and the general public."[44]

Yet despite the vigorous
development of legal institutions over the past two decades, a basic contradiction
remains: the Party pledges to operate under the primacy of the law, yet it insists
at the same time on Party supremacy in all matters, including the law. The
Constitution is defined as having "supreme legal authority," but also enshrines
the principle of the "leadership of the Communist Party." Courts are supposed
to adjudicate independently, but the Party opposes the idea of an independent
judiciary. Power nominally resides in government organs, yet real power rests
with the Party committees that shadow those organs at every level. State organs
must carry out the paramount task of protecting "social stability" by offering
legal remedies to protesters with legitimate complaints, but they must also
suppress them if Party authority risks being undermined.

In practice, this permanent contradiction greatly undermines
the effectiveness of the formal legal entitlements of Chinese citizens. Their
ability to exercise their rights-or turn to the courts if their rights are
violated-remains subject to the arbitrary assessments of Party authorities. Combined
with the traditionally extensive powers of the bureaucracy, this creates a high
degree of legal uncertainty for plaintiffs. Some social grievances are
determined as legitimate while others are seen as destabilizing and must
therefore be suppressed. Some protests are tolerated, while others are quashed
and their organizers imprisoned. Some environmental, labor, and social activists
are tolerated or even encouraged, while others are suppressed and arrested.
Some lawsuits against local governments are allowed, while others are proscribed
and their initiators punished.

In essence, when the larger goals of the party-state and the
processes of a professional judicial system align, the system can function fairly
independently. But when the Party decides that its political interests do not
coincide with the administration of justice, rule of law considerations are
suspended. Internally, Party and government authorities justify these shifts by
the Party's own ideological axioms about the need to protect Party rule and
political expediency, such as "looking at the big picture," "protecting social
stability," or "harmonizing legal and social results." The determination
process-in Party parlance, ding xing:"making a determination regarding the
[political] nature of a situation"-is intrinsically political and arbitrary. It
takes place outside of considerations for the integrity of the rule of law and
relegates the role of the judiciary to a simple instrument of the Party.

Similarly, appealing to "social
stability" is the most common justification given by the government for politically
motivated repression of perceived dissenters or critics.Officials often cite the "adverse
consequences" of news stories for "social stability" as a reason for censoring
media reports about social unrest or punishing news outlets and journalists for
reporting on them.[45]The cover-up of public health crises (such as the Severe Acute
Respiratory Syndrome epidemic in 2003)[46]or industrial
accidents (such as the chemical spill in the SonghuaRiver
in November 2005)[47]have also been
justified by the need to preserve "social stability."

At every level, China's key legal institutions are
under the authority of the Party's political and legal committees. Through
these institutions, corrupt local power holders can easily instruct the police
to abandon investigations, foreclose legal challenges, and dictate the outcome
of particular cases to judges, or frame protesters and activists on vague
charges of threatening state security and social stability.

There are other structural factors that make it especially difficult
for ordinary Chinese citizens to get access to justice. Legal institutions
remain tightly controlled by state organs, the Party does not rely primarily on
the judicial system to investigate corruption and wrongdoing of its members, many
grievances are turned toward an ineffective petitioning system, and freedom of
expression and the press remain highly constrained.

The low status of the legal profession is particularly
salient in relationship to the law enforcement and judicial organs of the state,
colloquially referred to as the gongjianfa:
the Public Security Bureau (Gong'an,
the police), the Procuracy (Jianchayuan,
the public prosecution), and the courts (Fayuan).
Of these three institutions, the Public Security Bureau is by far the most powerful,
as its minister is traditionally a member of the Political Bureau of the
Central Committee, the most important part of the party-state.[48] At the local
level, the head of the Public Security Bureau is always a member of the Party
Committee and generally the head of its powerful Political and Legal Committee
in charge of legal affairs.

The imbalance of power between state judicial institutions and
the legal profession means that Chinese lawyers depend greatly on cooperation
from the former to perform their duties. Standard procedures such as accessing
court documents and evidence held by the investigating organs, filing a case in
court, or meeting with a client in detention are in practice achieved only at
the discretion of these institutions.

The government has recognized the existence of these
problems. In 2005, a task force from the National People's Congress was formed
to investigate difficulties faced by lawyers and report to the President of the
Supreme People's Court (SPC), China's
highest judicial body. Subsequently, the SPC acknowledged that "Certain courts
and a small number of adjudicators and tribunal staff did not respect
sufficiently the rights of lawyers and their role in litigation procedures, and
sometimes violated their rights." In March 2006, the SPC promulgated
regulations calling courts to "earnestly implement the Law on Lawyers and
protect lawyers' professional rights."[49]

But even lodging cases can be difficult for
lawyers. Courts have a large degree of discretion in accepting cases, and
frequently apply political and legal criteria in determining whether to accept
cases.[50]Courts
are often instructed by Party or government authorities not to take up certain
cases or category of cases.[51] For instance, residents in Beijing
have reported that the courts were instructed not to take up cases of residents
forcibly evicted for urban redevelopment.[52]

The court structure is also an impediment to meaningful
participation of lawyers. Under the current system, cases deemed important or
"especially complicated" are internally decided by "adjudicating committees [shenpan weiyuanhui]," composed of senior
judges and judges who are often members of the Party's Political and Legal
Committee in charge of legal affairs.[53]
Judges are then bound by the decision of the adjudicating committee. Lawyers do
not participate in adjudicating committee meetings and cannot have their views
represented there.[54]

Corruption is also an obstacle to obtaining justice.[55] A corruption case
in 2004 in Wuhan,
one of the largest courts in the country, exposed a sophisticated scheme of
corruption within the court system and showed how multiple levels of judges and
administrators were able to form circles of mutual benefit and profit. Rewarded
activities in this system of bribe extraction included "taking bribes from the
plaintiff and the defendant [chi
yuangao, beigao],"
"manufacturing court cases [zao jia
an]," "selling evidence of the court case [mai zhengju]," "receiving kick-backs for passing cases [chi
huikou],""abusing
the power of judges to order suspension of businessoperation or
confiscation of property [lan
zhixing],""demanding commissions for making beneficial
judgment [gao youchang fuwu]," and
"embezzling court funding [tanwu nuoyong zhixing kuan]."[56]
In 2006, a total of 292 judges across the country were found to have abused
power for personal interests, and 109 of them were prosecuted and sentenced.

Retrenchment: The campaign for "socialist rule of law"

In April 2006, the authorities
launched a large-scale political campaign for "education in socialist rule of
law concepts [shehuizhuyi fazhi li'nian
jiaoyu]," aimed at "strengthening and improving the Party's
leadership over judicial work" and
emphasizing the difference between "socialist rule of law" and "Western
rule of law." The campaign was
introduced by a landmark speech by Luo Gan, a senior member of the Politburo
and the head of the Party Central Committee's Legal and Political Committee (the
highest policy-making authority in legal matters),[57] on April 11, 2006. Luo announced an initiative to the strengthen the
leadership of the Party over the courts, curb liberal ideas about greater
independence for judges and lawyers, oppose the "infiltration" of the judiciary
by unspecified "hostile foreign forces," and shift collective litigation from
the judiciary towards the mediation system.

He also urged tighter control
over legal activists, in particular the weiquan
movement. Specifically, he urged the adoption of "forceful measures … against
those who, under the pretext of rights-protection [weiquan],
carry out sabotage … so as to protect national security and the political
stability of society."[58]

Although the leadership role of
the Party and the need to ward off threats to political stability are common themes
in CCP rhetoric, this speech marked a departure from earlier policies and
practices regarding the gradual professionalization of the judicial system.

A set of political instructions directed at judges in a
provincial court shortly after the launch of the campaign illustrates the retreat
from increased professionalization of the courts:

Recently, some judges have started to believe that to be a
judge you just have to strictly apply the law in a case. In fact, this kind of
concept is erroneous, [as] 'strictly apply the law' can have different
explanations … [and] all the legal formulations have a clear political
background and direction.[59]

Another target of the campaign was the judges' desire for greater
judicial independence. In the same court document cited above, the Party
Committee instructed court cadres to "respect political discipline":

We often talk now about giving prominence to the judge's
position, but these are only words … we haven't said that the judge can escape
political discipline. Court cadres must talk about politics and respect
political discipline … We must stamp out the kind of narrow viewpoint that
thinks that you can also do court work by having judicial independence, having
the courts judge behind closed doors and not communicate with the relevant
departments.[60]

In October 2007, a speech from
the president of the People's Court, Xiao Yang, reiterated the importance of
the shift from judicial independence to Party leadership: "The power of
the courts to adjudicate independently doesn't mean at all independence from
the Party. It is the opposite, the embodiment of a high degree of
responsibility vis-à-vis Party undertakings."[61]

In contrast with the repeated claims that the courts must
uphold "justice, [and] fairness, [and] base their decisions on the law only and
serve the public," these instructions are clearly designed to make the
judiciary even more subservient to the Party.

The socialist
rule of law education campaign was also marked by the imposition of additional
restrictions on lawyers handling collective cases and by a renewed crackdown on
weiquan legal activists.

A few
weeks before the formal announcement of the campaign, the government imposed
new limitations on the legal profession by adopting regulations that significantly
hinder the ability of lawyers to represent collective cases and protesters.[62]

The "Guiding Opinions on Lawyers Handling Mass Cases,"
promulgated through the All-China Lawyers Association, cited the need to
maintain "stability" as a reason for their promulgation. They referred to the
"major impact" that land seizures, forced evictions, relocations from dam
areas, and lays-offs resulting from state-owned enterprise
restructuring-precisely the kinds of problems that give rise to "mass
cases"-can have on "the country's stability."[63]
In essence, the Guiding Opinions made clear that political considerations were
paramount and that lawyers must act as auxiliaries of the judicial bureaus when
handling politically sensitive cases involving protesters.[64] The regulations
were widely perceived as suppressing weiquan
lawyers, who had been representing many collective cases.

At the same time, the government's
hostility towards the weiquanmovement was
reflected in the arrest and conviction of three of its most outspoken members,
Chen Guangcheng, Gao Zhisheng, and Guo Feixiong. All three men had been
providing legal advice to protesters and plaintiffs suing government
authorities-Gao as a qualified lawyer, Chen and Guo as legal advisers (under
Chinese law, it is not necessary to be a qualified lawyer to represent a
defendant, including in criminal trials).[65]

The socialist rule of law education campaign also signaled tighter
overall controls over the legal profession. In September 2006, the vice-minister
of justice in charge of the administration of lawyers, Zhao Dachen, called for
"strengthening the management" of the legal profession and guarding against
neglecting "the essential attribute of the socialist legal worker."[66] The vice-minister
openly stipulated that lawyers consider not only the legal results but also the
"social result" of their work, so as to "build a high quality corps of lawyers
that reassures the party and makes the people content."

The speech also called for "purifying the thinking" of
judicial workers, and imparting to "the teams working on the administration of
lawyers and the lawyers at large to 'ideological education.'" It sternly
criticized judicial officials who neglected the "political attributes" of legal
professionals:

Some comrades unilaterally believe
that the legal service of lawyers is a mere legal professional activity, they
neglect its intrinsic political attributes; … Some comrades incorrectly
indicate that lawyers are a liberal profession, and neglect the essential
attribute of the socialist legal worker.[67]

The vice-minister also warned against "ignoring national
conditions" when copying foreign legal practices:

On the issue of perfecting the lawyer system, there are
some comrades who simply copy from other countries' methods, ignoring the national
conditions … It is necessary to strengthen further the concept of the general
situation and all the work of the judicial administration must be incorporated
in the general situation of the work of the Party and the state.[68]

In November 2006, Wang Shengjun, Secretary of the Political
and Legal Committee of the Party, warned lawyers about opposing the Party:

There are people who use the tools of Western legal theory,
and put on the hat of 'ruling the country according to law' to negate the
leadership of the Party in respect to political and legal affairs; take up the
slogan of 'judicial reform' to negate the socialist judicial system; or stir up
individual cases to defame the political and legal organs, attempting to bring
chaos in the sphere of judiciary ideology.… We must unwaveringly uphold the
political socialist direction of China's political and legal work.[69]

In February 2007, warnings about the subversive character of
foreign legal concepts were even more explicit in a new landmark speech by Luo
Gan, the head of the Political and Legal Committee, and published in Seeking Truth, the theoretical journal
of the Central Committee. Luo Gan's speech urged legal organs to guard against "hostile
forces (who) have been trying their best to attack and fundamentally transform
our judicial system."[70]

All law-enforcement activities should be led by the party.
All reform measures should be conducive to the socialist system and the
strengthening of the party leadership … There is no question about where legal
departments should stand. The correct political stand is where the party
stands.[71]

Luo nevertheless acknowledged that social unrest had
legitimate causes. In some protests, participants had no direct interest in the
cause but were venting accumulated anger, he said, adding that judicial
departments should "reflect on this phenomenon" and "safeguard social justice
and fairness."[72]

Yet, the crackdown against rights activists continued. In
August 2007, the Ministry of Justice ordered the dissolution of the Beijing Bar Association's
Constitutional and Human Rights Committee. The committee, established in 2001,
was known for its progressive stance and counted several high profile public
interest lawyers as members.[73]

On October 28, 2007, the government passed the long-awaited
revisions to the Law on Lawyers,[74]a move
state media hailed as designed to "make life easier for lawyers."[75] But two days
later, on October 30, in an important speech pronounced at the closure of a
training session on "Socialist rule of law concepts" held by the All-China
Lawyers Association, Vice-Minister of Justice Zhao Dacheng ruled out greater
independence for the legal profession, stressing to the contrary the need to
further control the work of lawyers as a way to diffuse social unrest.

"Lawyers must guard against the concept of mere
professionalism, and carry out in their work the unification of legal and
social results," Zhao said.[76]

Mass cases coming from conflicts over land confiscation,
demolition and evictions, relocation from dam areas, enterprise reforms,
environmental polices are growing by the day. In these circumstances judicial
administrative organs and bar associations must conscientiously carry out the
guidance and supervisory duties, positively guide lawyers in accordance with
the 'Guiding Opinions on handling mass cases' and other regulations and
requirements.[77]

In essence, "harmonizing legal and social results" requires
that lawyers tailor legal solutions to what the Party thinks best serves social
stability.

Against this highly politicized background, lawyers in China
face huge obstacles in defending citizens whose rights have been violated. Yet,
more and more lawyers are taking such cases, encouraged by profound social
dynamics such as rising rights awareness among the populace, repeated expressions
of commitment to the rule of law by the authorities, support from legal
professors and experts, the growth of a professional culture among judges,
prosecutors, and legislative drafters, and, at least for some, the high social
status lawyers enjoy when they are commercially successful.

V. Violence Against Lawyers

For the past few years the working environment of the legal
profession has become more dangerous day by day.

-Text of an open letter by 53 lawyers, December 2006

For lawyers, retaliation by the local authorities is a big
danger. We are all walking on thin ice.

-P.D., a Beijing
lawyer, November 2007

Many Chinese lawyers routinely complain that violence, or
the threat of violence, is an ever-present risk against which they feel
inadequately protected by the state. The majority of cases of violence against
lawyers are purely criminal, but many others are linked to their involvement in
civil rights or human rights cases, and a few seem abetted by law enforcement
personnel or local officials. This chapter documents the failure of the Chinese
government to fulfill its responsibility under the law to adequately safeguard
the security of lawyers and people who, without having the formal status of
lawyer, exercise the functions of lawyers.

The government acknowledges that lawyers play an important
role in the administration of justice and has indicated-including through
instructions issued by the Supreme People's Court-that legal institutions and
law enforcement agencies must ensure that lawyers receive sufficient protection
so as to be able to carry out their functions unhindered. But, in practice,
lawyers say that criminal threats and assaults against them are a frequent
occurrence; that those instances are not vigorously investigated; that bar
associations are unwilling or unable to help them; and that they have to keep
silent about specific incidents for fear of retribution or loss of business.

Despite lawyers being adamant that the risk of violence
against them is an acute problem for the entire legal profession-a claim
supported by countless articles in professional and legal publications-there
are no recent published empirical studies documenting this. Very few cases have
been reported in the official media over the years.[78]
Individual cases that have been given publicity in domestic media rarely involve
politically sensitive cases and tend to show the government responding to the
violation. This pattern suggests that only isolated cases or general and
abstract discussions about them are tolerated in professional, academic, and
media publications.

Indeed, after the national bar association published for
restricted distribution a ground-breaking report on abuses against lawyers in
2002, in the context of a three-year program to study the problems faced by
lawyers, Beijing judicial authorities cut the program short and prohibited the
publication of similar reports.[79]
The report, based on a survey of 598 respondents, exposed severe difficulties
for lawyers, and described cases of lawyers harassed, detained, arrested, or
prosecuted in the course of carrying out their professional duties.[80]
The cases included lawyers assaulted by the opposing party: Yan Yujiu
(Sichuan), She Yuanxi (Sichuan), Pei Shan (Xinjiang), Wang Bing (Liaoning), Jia
Tianjin (Henan), Wang Fei (Chongqin); lawyers attacked by unidentified
aggressors, including Liu Chixian (Guangxi), Yu Haifeng (Shandong), Yang
Jianxin (Heilongjian), Teng Kuang (Heilongjiang); and lawyers kidnapped by the
opposing party including Ren Shangfei (Hebei) and Chen Guangqiang (Fujian).[81]

In December 2006, 53 lawyers and law experts took the rare
initiative of addressing an open letter to the central authorities to ask the
government to protect lawyers.[82]
The drafters of the letter, lawyers Cheng Hai, Gao Fengquan, Zhang Lihui, Li
Heping, Ouyang Zhigang, Li Jinsong, and Meng Xianming, wrote that the
environment had grown "day by day more dangerous" over the past year:

For the past few years the working environment of the legal
profession has become more dangerous day by day. Not only must lawyers face all
sorts of illegal restrictions from the judicial and administrative departments,
such as being followed, being, at times violently, prevented access [to clients
or witnesses], or being prevented from gathering evidence, but their personal
security is also threatened.

These threats are not coming solely from the opposite party:
they increasingly come from forces of the Public Security Bureau, the Procuracy,
and the courts themselves. Between March and August this year, more than four
cases of lawyers being attacked by public security or court personnel have been
exposed nationally, this is a frightening development![83]

The government to date has not acknowledged the letter,
while domestic Chinese media never reported the initiative. One lawyer told
Human Rights Watch that the Party authorities in charge of judicial affairs had
instructed the judiciary to maintain vigilance against "people who try to use
the legal system to attack the party and the government," and that it would
never respond to this type of public appeal.[84]

Gao Zhisheng, Chen Guangcheng, and the
crackdown on cause lawyering

The case of the human rights lawyer Gao Zhisheng, sentenced to
four years under subversion charges after months of increased harassment, has
received extensive international attention, and prompted foreign governments to
make regular diplomatic representations to the Chinese government, though with
little apparent effect.[85]
Along with the arrests of the blind barefoot lawyer Chen Guangcheng and the Guangzhou-based
legal activist Yang Maodong (better known under his pen name Guo Feixiong), Gao
Zhisheng's arrest marked the peak of a campaign by the Chinese authorities to
squash what they perceived as a nascent legal opposition movement in 2006.

Suppression of Gao Zhisheng

Gao was a successful lawyer who specialized in defending
cases of corruption, land seizures, police abuse, and religious freedom. In
2001 he was rated by the Legal Daily,
a publication operated by the Ministry of Justice, as "one of the top ten
lawyers in China."
Increasingly outspoken, he started to take on more politically sensitive cases,
including torture of practitioners of the banned Falun Gong movement. As the courts
systematically refused to lodge his lawsuits, he turned to writing reports and
publishing open letters denouncing these abuses, including to the top
leadership of the Communist Party.

As 2006 progressed, the Chinese authorities first put Gao
Zhisheng and his family under around-the-clock police surveillance, then suspended
his law firm license and stripped him of his professional lawyer's license.
Then they arrested him, detained him incommunicado for six months, coerced him
into pleading guilty and relinquishing the right to choose his lawyer, and tried
him in proceedings his family members were not permitted to attend. He was then
sentenced to four years' imprisonment for subversion with a five-year reprieve.[86]

According to the court, the reprieve was granted because Gao
had cooperated with the investigators and informed on fellow human rights
activists. Gao later denied that he had informed on fellow activists, and
stated that he had only agreed to the terms forced upon him by the authorities
under psychological and physical pressure. The interrogators had questioned him
for an extensive period of time under bright lights and openly threatened to
retaliate against his family if he did not cooperate, he told a fellow
activist.

A long string of violent incidents that had begun in 2005,
starting with constant surveillance by plainclothes police officers, gave Gao
reason to heed those threats.Those
incidents included:

·On October 19, 2005, one day after Gao published
a scathing open letter to the top state leaders about abuses against religious
and Falun Gong practitioners, he received an anonymous threat by phone: "We
know where you live and we know where your daughter goes to school." The next
day Gao and his wife verified that their 12-year-old daughter was indeed
followed by plainclothes police officers.

·On November 21, 2005, a group of unidentified
men followed Gao to a meeting in a restaurant with the United Nations Special
Rapporteur on Torture Manfred Nowak, crowding the room they were sitting in and
displaying hostile, intimidating behavior. After a UN aide took a picture of
the group, the men protested vehemently and forced her to delete the picture.
Gao and Novak retreated to a hotel to continue without their meeting being
directly observed.

·On March 10, 2006, plainclothes police officers
who were monitoring his law firm stopped lawyer Li Heping-who was handling
Gao's appeal against the suspension of his professional license-from accessing
his office. The men wrestled Li out of the building and threatened Gao.

·On July 30, 2006, Gao was violently beaten by
policemen in charge of the surveillance of his home, and then briefly detained
at the local police station. Gao had come down from his apartment to request
that they turn off the motor of their vehicle. A dispute erupted and three of
the seven-man team posted there assaulted Gao. One of them tried to hit him
with a large brick. Gao sustained minor injuries to his left arm and to one of
his legs.

·On August 15, 2006, Gao was arrested at his
sister's home in Dongying municipality, ShandongProvince.
He was taken away in a car and disappeared for over a month. His family was
finally notified on September 21 that he was in police custody for suspected
criminal acts.

·Gao's wife, Geng He, subsequently was warned by
police officials not to contact or communicate with anyone, especially the media.
If she complied, she was told, she would be able to meet Gao Zhisheng. (Gao
remained incommunicado until his trial on December 12.) The family continued to
be harassed by agents who monitored them around the clock, followed them
everywhere, prohibited friends and visitors from coming to see them, and warned
them about communicating with anyone about Gao's case.

·On November 21, 2006, plainclothes policemen
made an attempt to pick up Gao's two-year-old son from kindergarten. The
officers showed their police badge to the teacher, who refused to comply. Gao's
wife's enquiries to the police went unanswered.

·On November 24, 2006, two police officers punched
Gao's wife in the street after she challenged them for tailing her. She called
the police station, which declined to send a patrol but asked her to report to
a station close to her residence.

·On December 16, 2006, a few days before Gao's
trial, his 13-year-old daughter refused to be escorted home from school in a
police car. Police officers dragged her into the car, bruising her legs and
neck.

The violence and intimidation against Gao Zhisheng appears
more typical of the tactics used by the authorities against people identified
as political dissidents than the forms of intimidation recounted by average
lawyers. What made Gao a dissident in the eyes of the authorities was his
refusal to yield to pressure and desist from denouncing the lapses of the
judicial system and the defects of Party control over the legal system. Gao's
outspokenness, his defense of the Falun Gong, his acerbic interviews with
foreign media and open letter to the state leaders had clearly made his case
the province of the political police-the State Security Bureau and State
Protection Bureau-rather than the judicial authorities. The fact that the
authorities saw Gao as a dissident was later reflected in his sentence for
subversion, based on his having published nine articles that "defamed and made
rumors about China's current government and social system, conspiring to topple
down the regime."[87]

Yet, even if in the eyes of the authorities Gao was tried as
a dissident rather than a lawyer, his work as a lawyer prompted the
retaliation. His case became emblematic of the authorities' blatant disregard
for legality in the methods used to silence him and the chilling effect his
case had on the legal profession.

Attacks against Chen Guangcheng's legal team

The second case that attracted considerable attention in
2006 was the long string of abuses and procedural flaws in the trial of the
blind "barefoot lawyer" Chen Guangcheng. A self-taught legal activist, not a
licensed lawyer, Chen documented abuses committed by the local family planning
authorities of Linyi municipality, ShandongProvince, in a report
made public in June 2005.[88]
He was first put under house arrest in mid-August 2005 as he was trying to help
four villagers to bring a lawsuit against the family planning bureau. By this
time, Chen's case had become something of a "cause célèbre" among weiquan and legal activists, and a
number of lawyers, legal experts, and rights activists started to organize his
defense and publicize his case.

On March 11, 2006, following a confrontation with the police
over the beating of a neighbor by unidentified men, Chen was taken away by
police and detained incommunicado for six months. After being formally charged with
"inciting crowds to disrupt traffic" and intentional destruction of property,
Chen was sentenced in August 2007 to four years and three months' imprisonment.
In October, the appellate court annulled the first trial, although it did not
make clear on what grounds, and ordered the case remanded to the same court,
which in December imposed the exact same sentence for the same crimes. The
second verdict was upheld in January 2007 by the appellate court.

Lawyers who came to Chen's defense were repeatedly subject
to intense harassment and in some cases physical attack every time they came to
Linyi to visit Chen, interview relatives and villagers, or prepare for and
attend the trial. Incidents included:

·On October 4, 2005, Bejing lawyers Li Fangping
and Li Subin, accompanied by law lecturer Xu Zhiyong, attempted to visit Chen, who
was then under arbitrary house arrest. They were stopped by over a dozen
unidentified men surrounding Chen's house. Xu Zhiyong and Li Fangping were
shoved and punched, and the three men were taken to the Shuanghou police
station where they were interrogated until the following morning, before being
escorted back to Beijing.

·In late June 2006, while Chen was detained at
the YinanCountyDetentionCenter, three lawyers
accompanied by the Beijing-based human rights activist Hu Jia attempted to
visit Chen's family. As they entered the village, unidentified men surrounded their
car and flipped it over. The men threatened the group and physically prevented
them from reaching Chen's house. Lawyer Li Jingsong started to take pictures
but had his camera snatched by the men. Uniformed police present on the site
refused to intervene and took Li Jinsong in for questioning.

·On July 10, a few days before Chen's hearing
date for the trial, lawyers Li Jinsong, Li Subin, and Zhang Lihui, accompanied
by Hu Jia, traveled to Linyi to gather testimonies and visit Chen's relatives.
Chen's wife was taken away in a police car before she could meet them.

·On August 17, lawyers Li Fangping and Zhang
Lihui, along with legal scholar Xu Zhiyong, arrived in Linyi for Chen's trial,
due to be held the following day. Unidentified men physically intimidated the
group in a restaurant, and accused Xu of being a pickpocket. The police detained
the three lawyers, and held Xu long enough that he was unable to attend the
trial.

·On November 27, lawyer Teng Biao, who had
traveled to Linyi to attend the re-trial of Chen, was forcibly taken away and
detained for five hours by the police. He was handled roughly, with five or six
policemen pinning him to the ground while they searched him, confiscated his
mobile phone, and questioned him. He was released without explanation as to why
he was detained.

·On December 27, lawyers Li Fangping and Li
Jinsong were ambushed on their way to meet with Chen to discuss his second
appeal. Two cars without license plates stopped the overnight bus on which they
were traveling. Eight unidentified men dragged Li Jinsong out of the bus and
without a word started hitting him with metal pipes. Li Fangping stepped off
the bus and was attacked as well, sustaining head injuries that required emergency
care. The lawyers suspected that the local authorities knew of their itinerary,
as they had communicated with the judge who had conveyed Chen's request to see them.

As in the case of Gao Zhisheng, the local authorities put
under surveillance, harassed and threatened the family of their target. Chen's
wife, Yuan Weijing, has been under permanent surveillance since Chen's arrest.
She has filed numerous formal and informal complaints, including with the help
of some Beijing
lawyers, all to no avail. When Yuan attempted to travel to Manila
in August 2007 to collect a human rights award from the Ramon Magsaysay Foundation
on Chen's behalf, police confiscated her passport and sent her back to Shandong province. A few
days later, she was forcibly pulled from the bus she had boarded to return to Beijing by a group of plainclothes
policemen.[89]
To date she is still under around-the-clock police surveillance and her
movements are restricted.[90]

Chinese domestic media never reported on Gao Zhisheng's or Chen
Guangcheng's cases except to announce their convictions,[91] and
official spokespersons evaded questions from foreign journalists about these
cases during the Ministry of Foreign Affairs' weekly press conferences.

The conclusion that weiquan
lawyers drew from the cases of Gao and Chen was that the central authorities
would condone physical abuses against lawyers if they were involved in cases
that could result in significant embarrassment for the government or the Party,
even at the expense of damaging the credibility of the legal system as a whole.

"The silence of the central authorities implies that they
endorsed the actions of the local officials who beat up lawyers," said one
attorney directly involved in the Chen Guangcheng case.

In Beijing
it is the state security that was doing the surveillance of some of the lawyers
[during the trial]-how could the central government not know about the case?
What's more, this case was widely reported by international media-the New York Times, Radio Free Asia, we got calls from
media from the world over. And it was a big discussion topic on internet.[92]

According to one account given to Human Rights Watch by a
legal expert, the Ministry of Justice in Beijing
had initially not paid any attention to Chen Guangcheng's case, and that it was
the local authorities in Linyi who were solely responsible for the abuses
against Chen and various members of his defense team. But the central
authorities then stepped in:

After the international outcry that followed the first
trial, the central authorities were forced to take notice. The party
authorities at the Ministry of Justice mandated a special small investigative
team to review the case. The team concluded that the trial had clearly violated
the procedures…. The Political and Legal committee of the Party ultimately decided
that it could not uphold the trial but nor could it give encouragement to the weiquan agitators. So it instructed the
appellate court to have the case remanded.[93]

It is impossible to verify this account of the central
authorities' involvement, given the notorious opacity of decision-making in
cases with political overtones. Nevertheless, the Chinese government has a
responsibility to uphold the law. The silence of the government and the
official media in face of what appears to have been blatant criminal
intimidation and unlawful acts over many months indicates that the central
government was, at a minimum, abetting the repressive tactics of the local
authorities and the political police.

Weiquan lawyers
readily acknowledge that Gao's and Chen's cases were out of the ordinary
because their prominent standing in international media prompted the highest Party
authorities to dictate the outcome.[94] But
these lawyers are also adamant that these cases were emblematic of the
prevalent problems that lawyers and legal advocates face in their work:
physical danger, surveillance and intimidation by state security personnel,
refusal by law enforcement agencies to protect lawyers or entertain complaints,
impunity for the attackers, and media censorship surrounding the cases.

One lawyer, in reference to Gao and Chen, told Human Rights
Watch:

These cases may have been exceptional but the problems they
exposed were typical of those that affect the legal profession. Completely
typical.[95]

Other lawyers who were not involved in the case shared this
view in private discussions.

What do you think? If this can happen when so many people
pay attention to the case-lawyers, law professors, the foreign media, the
internet community-how could the situation be better in regular cases? The
problems shown by the 'Old Gao' and [Chen] Guangcheng cases are really very
widespread.[96]

According to another lawyer, it was precisely because Chen
Guangcheng's case was so typical that it inspired the legal community to support
him.

Personally I don't think this case was well handled [by
Chen's legal team], but the hardships faced by the defense were not out of the
ordinary for lawyers in China.
The local authorities are too powerful-this is why you have to avoid alienating
the central authorities in a case like this.[97]

Beyond Gao and Chen: Recurring violence against lawyers

Violence against lawyers is not limited to high profile
cases that the authorities see as political. In fact, cases of assault against
lawyers appear with disturbing frequency in all types of cases, from commercial
disputes to administrative lawsuits.For
instance, between 2005 and 2006, at least five cases of physical assaults
against lawyers in Shanghai
were reported and widely discussed in the domestic media.[98]

The cases of Wang Lin, who was beaten by a court official in
Tianjin, and of Mao Liequn, who was attacked by
a gang in Shanghai,
received nationwide attention among lawyers, with various bar association
trying to publicize the incidents to advance the cause of lawyers in public
opinion and government circles. More sensitive cases like Gao Weiquan, who was dragged
from a petition office, Yang Zaixin, attacked two weeks after having his
professional license suspended, and Tang Jingling, who was assaulted in Guangzhou, are well known
among weiquan activists but have
received no publicity. All these cases were regularly cited by legal
professionals interviewed by Human Rights Watch
as typical of the dangers faced by lawyers.

Wang Lin, Tianjin

The March 2006 attack on Beijing lawyer Wang Lin is probably the most
famous case to be covered by the official media. The fact that the incident
took place just a few weeks after the Supreme People's Court had promulgated
new measures intended to strengthen "the protection of lawyers carrying their
professional duties" was of particular significance.[99]

On March 28, 2006, Wang Lin went to file a collective
administrative lawsuit against the government construction bureau at the
Tianjin Nankai District court. He was accompanied by 11 plaintiffs who were
challenging a decision from the Tianjin Construction Bureau to evict them,
arguing that the scope of an eviction order granted two years ago had been broadened
without permission to encompass their homes.

The vice-head of the administrative court refused to accept
the filing of the case, asserting that the plaintiffs needed to file individual
cases, not a collective one. Wang suggested that he would do so, but the court
official replied, "Even if you file plaintiff by plaintiff we won't lodge this
case." Wang asked for a written court document to that effect, which the
official refused as well. "I am the court and the court is me. If I say no
filing, that means no filing," the official told Wang.

In the heated discussion that followed, the official tried
to punch Wang, and then shoved him outside the court, grabbing him by the back
of the neck and warning him:"Be careful
when walking in the street at night."

Because Wang was relatively well-known, having been featured
in a program by China Central Television that exposed the wrongful eviction of
over 7,000 people in central Hunan province, and having worked for an
influential law firm, he managed to get a prominent newspaper, the Beijing Youth Daily, to run a detailed
exposé of the incident shortly afterwards.

The publication of the article generated a strong debate among
lawyers, who spotted an opportunity to highlight their plight and denounce the
authorities' inaction. Many articles quoted Wang Lin's comments published on his
personal website:

You can beat me up, but please do not beat me up in court;
please do not beat me up as I carry out my professional duties. Being beaten in
this manner, I feel that not only myself but the law itself is being beaten. And
this is what I find difficult to accept.[100]

One online commentator suggested that petty harassment of
lawyers by court officials was widespread:

This is far from being the only case. In many local
tribunals the personnel are really beyond belief! Last year a certain lawyer
was even attacked during the hearing by a court official…. Court personnel make
our work difficult and we have to endure countless humiliations.[101]

In early April, media reports announced that the president
of the Supreme People's Court, Xiao Yang, had himself issued "internal
instructions [pishi]" to investigate
the Wang Lin incident "and solve it according to the facts."[102]

On April 15, the Tianjin Party political-legal committee set
up an investigation team with members from the committee, the court and the Procuracy.[103]
The team concluded that "there was not sufficient evidence to resolve this
case," but nevertheless dismissed the court official. Although Wang was
personally vindicated, the Nankai court has yet to grant a hearing for the
administrative lawsuit of the plaintiffs whose homes were destroyed.

Although the outcome of the episode-the sanction of a court
official-is the exception rather than the norm, lawyers interviewed by Human Rights Watch said that "the case was
emblematic of the behavior of some local courts."[104]

Gao Weiquan, Shenyang

Gao Weiquan's case is also illustrative. Gao (who is no
relation to Gao Zhisheng), a 59-year old
lawyer from Shenyang, Liaoning Province, was physically assaulted on April 13,
2006, as he attempted to file a complaint for retrial at the Letters and Visit
Office of the Liaoning Province High Court.

According to Gao's account, the
staff refused to file his complaint without explanation. Gao then asked to see the
head of the Letters and Visits office. He was told to "go look for him
outside." Three court staff members then brutally dragged him out of the
building, hitting and kicking him with their fists and feet. Gao called the
police. The court personnel justified his physical removal from the court on
the grounds that Gao had been "petitioning without grounds" and "damaging the
door" of the office. The police refused to lodge a formal complaint. The next
day, Gao filed a report to the Shenyang
lawyers association and the Liaoning High People's court. Three weeks later, on
May 8, having still not received an official answer, Gao wrote an open letter
to the provincial Liaoning
lawyers association and posted it on the internet:

How come I have still not heard a word from the court? …A lawyer is beaten and so what? If even the
lawyers association doesn't care, how can we expect the Public Security Bureau
to do anything about it?[105]

Despite eliciting much support on internet from fellow
lawyers, neither the local judicial authorities nor the Liaoning lawyers association have taken any
action to date.

Mao Liequn, Shanghai

Even when local bar associations are more vocal, the results
are limited, as illustrated by the attempt by the Shanghai bar association to improve
protection for lawyers after a 2006 spate of attacks against attorneys doing
their jobs.

In August 2006, lawyer Mao Liequn was severely beaten by a
gang of 10 men while representing a Hong Kong company in talks to evict a Shanghai firm illegally
occupying a dockside storehouse in Pudong. Mao suffered a broken nose and
multiple injuries to his head, hand, and body that required hospitalization.
"One man grabbed my clothes, hitting me with his fist on the face, while
another one grabbed my hair. Other joined and blows rained all over my body,"
Mao recounted to a Chinese journalist. His client, who was accompanying him,
was also assaulted. Mao was then dragged into a nearby building, where he was
again beaten up. An associate of Mao managed to call the police, and,
crucially, to film from his car the assailants as they were escaping.[106]

The Shanghai
bar association reacted vigorously. A spokesperson told the press that the Mao
Liequn attack "came as a warning to all of us," and that the bar association
was proposing draft legislation to strengthen the protection of lawyers
carrying out their duties. "In recent years many lawyers from Shanghai were assaulted in the course of
their professional work," the spokesperson said.[107]
"We feel that there should be a law for protecting lawyers."

Local press reports highlighted three other recent cases of
lawyers having been assaulted: On September 28, 2005, a lawyer from the Guochen
law firm was attacked and threatened by thugs while handling a commercial
dispute between rival firms. The harassment continued afterwards, ranging from threats
to cutting the water supply to his private home. In two separate incidents in
July and August 2005, two lawyers from the Guoxiong and Liancheng law firms, respectively,
were attacked by disgruntled parties in front of the court building.

The Shanghai
bar indicated that the proposed legislation would seek to guarantee the rights
and safety of lawyers during negotiations, investigations, and evidence
gathering.[108]
Such legislation had been discussed for a number of years and had been recommended
for ratification by the judicial affairs committee of the Shanghai People's
Assembly as early as 2004, but to no effect. Despite the national attention
given to Mao's case, it failed to generate momentum for the adoption of such
regulations.

A few months later, on October 19, 2006, another Shanghai lawyer was
violently assaulted. He Wei, from the Minjiang law firm, was working free of
charge on a labor case, seeking compensation for a worker who had lost three
fingers in an accident at a printing company. When He tried to visit the
company, the manager reportedly told him: "A lawyer? What kind of thing is
that?" and proceeded to beat him with the help of his associates, kicking him
repeatedly on the ground.[109]
He Wei sustained a perforated eardrum and various other injuries that required
hospitalization.Shanghai media reported
the case, including on television, and He Wei's attacker was later sentence to a
year of imprisonment, but there was no new public appeal from the bar
association to enact regulations protecting lawyers.[110]

Despite the inability of bar associations across the country
to defend individual lawyers who represent sensitive human rights cases, the
associations often do show professional solidarity with the victims of abuses.

Li Heping, Beijing

Li Heping, a lawyer from the Beijing Globe law firm, was
kidnapped, detained, and beaten by a group of unidentified men on September 29,
2007. His captors released him after six hours, having threatened him with
further violence if he did not leave Beijing
permanently.

Initially a specialist in intellectual property and civil
law, Li had also participated in a string of sensitive cases, including that of
the blind activist Chen Guangcheng; the underground Christian sect leader Xu
Shuangfu, who was executed with 11 other members in November 2006;[111] Yang Zili, a
member of a university discussion group (New Youth Study Group), who was
sentenced in 2001 to eight years imprisonment for "subverting state power";[112]
and other cases highlighting abuses by state agencies.

In the few days preceding the attack, Li had reported being
followed by police and plainclothes officers he believed he had met before and
were from the State Protection Bureau. On September 29, around 5 p.m., one of
these officers invited him to get into his car. Li declined. Five minutes later
a group of men seized Li, covered his head with a hood, bundled him into a car,
and drove out of Beijing.
He was then dragged into a basement where he was beaten up by men using
electrical batons. They ordered him to leave Beijing with his family or face retribution.
Li's captors also copied the contents of his computer, and took his external
hard drive, mobile phone chip, and notebook, before detaining him for a day in
a Beijing
suburb. Li reported the incident the next day, and was promised a "serious
investigation" into the incident by the police. "They want all my family to
move out of Beijing, to sell my apartment, my
car and leave Beijing.
In their words, I am to 'get the hell out of Beijing
[gunchu Beijing],'" Li recounted to Radio Free
Asia the next day.[113]
Li has since indicated he intends to continue his work undeterred.

Yang Zaixin, Guangxi

An attorney from impoverished Guangxi province, Yang Zaixin,
was dismissed from his law firm in January 2006 after he took a series of
sensitive cases, including those of defendants accused of being members of the
banned Falun Gong. Yang posted articles online protesting his dismissal and continued
his involvement in sensitive cases.

On February 17, 2006, his home was searched by the local
police, who confiscated his computer and court case documents, and took him to
the police station for 24 hours to question him about his activities and links
with overseas media and groups. Undeterred, Yang continued to denounce his
dismissal in internet postings and interviews with overseas media as
politically-motivated, and announced that he would go to court to challenge it.
On April 9, around 9 p.m., Yang was assaulted by a group of unidentified men in
front of the school complex where he resides. The men punched and kicked Yang,
and took turns hitting him after he fell to the ground.

Yang sustained minor head and ear injuries that required
stitches, and bruises on his back, chest, and arms. Yang called the police
immediately after the attack, but the police officer declined to send a patrol,
requiring him to come first to the police station to report the case even
before seeking medical attention. Yang was bleeding and went to the hospital
first. When the head of the police station was contacted by a journalist from
Voice of America's Mandarin service, he denied knowledge of the attack, stating
that, "Last night, nobody came to report such a case."[114]

In August 2006, Yang traveled to Shandong province to attend Chen
Guangcheng's trial. The local police apprehended him before sending him back to
Guangxi, where he was detained for a few days by the police.[115]

Tang Jingling, Guangzhou

Tang Jingling's case provides another example of physical
attacks on and intimidation of lawyers by unidentified agents at the very time that
judicial authorities are pressuring the lawyers to drop sensitive cases. Tang,
a lawyer from Guangzhou who gained prominence in participating in a notorious
case of counterfeited medicine, known as the "qi er yao" case, was working with rights activist Guo Feixiong on a
number of election recall cases, including in Taishi, Guangdong.[116]

On February 2, 2006, Tang was verbally provoked and hit by
men who appeared to have links to law enforcement agencies. A group of
unidentified men had started to follow Tang after he had visited Guo Feixiong
that day. Tang tried unsuccessfully to get away from them, before going towards
the closest police station. According to Tang's account, one of the men then hit
him from behind:

One of them, maybe their chief, was older than the others,
very tall, with a heavy face. As we were walking towards the police station in
a small alley, he suddenly hit me with great force in the back of the head. I
turned around and said 'Why did you hit me?' I talked to them calmly, [though] there
were other people in the street [who] all saw his belligerent gesture. He
didn't reply. I gave him a look, and continued to walk in the direction of the
police station. After a few steps, he hit me another time. Again, I asked him
why. We continued to walk and at the turn of the alley, four people surrounded
me.

Tang recounted that the men obstructed his passage with
their bodies, pushed him around, and stamped on his feet. At this point Tang
saw a police car close by and went for help. The police took him to the police
station a few hundred meters from there. The men waited outside the police station.
Tang then contacted SunYatsenUniversity's
Professor Ai Xiaoming, a renowned rights activist, who came to the police
station to help Tang to file a complaint. The officer taking the deposition
refused to accept that Tang had been assaulted and failed to give a copy of the
complaint to Tang. After Tang and Ai realized that the police would not accompany
them despite the presence of the gang outside of the police station, they took
a taxi to Ai's home, to which they were followed by the men who kept watch
until 10 p.m.A few weeks later, in
April 2006, Tang lost his professional registration when his law firm withdrew
his annual renewal application. (See below section VI.)

As the cases above illustrate, physical intimidation of
lawyers remains a pervasive risk. Violence is used as way to deter lawyers from
representing certain plaintiffs, to deny them the ability to gather evidence
independently, to discourage them from pursuing a case, to retaliate against
them if they persist, and to frighten and silence them if they continue to be
active about causes after having been disqualified as professional lawyers. Moreover,
violence and the threat of violence are not only the province of criminals but also
sometimes of non-state agents who appear to act with the knowledge of the
police.

The failure of the government to ensure that lawyers are
able to perform all their professional functions without intimidation appears
to be particularly conspicuous for lawyers who try to bring human rights cases
before the courts, but not limited to these cases. The investigation of attacks
against lawyers was a specific request of the 53 lawyers who addressed an open
letter to the central authorities in December 2006. Without adequate protection
for lawyers, the letter pointed out, the government pledges of building "a
lawful and harmonious society" were unrealistic:

We entirely support the general project of governing the Party
and the state according to law, as well as the establishment of a harmonious
society. But a harmonious society must be a society based on legality. If the
environment for lawyers deteriorates in this way, how can we advance a
law-abiding and harmonious society? We strongly request that the illegalities
committed by judicial organs and associated rogue agents be investigated so as
to carry out the lawful protection of the security of legal professionals
discharging their duties. We also demand that the Law on Lawyers be revised,
and that relevant regulations and supervision measures be enacted, so as to
improve the environment in which lawyers work.[117]

Despite the widespread character of attacks on members or
ex-members of the legal profession and the repeated calls to address this
situation, the government appears to continue to turn a blind eye to the
problem.

VI. Intimidation

Lawyers interviewed by Human Rights Watch
said a frequent source of threats or acts of violence against ordinary lawyers
is criminal intimidation in the course of a legal dispute. This is most
typically carried out at the behest of the opposite party, employing strongmen
or thugs to discourage a particular lawyer or his law firm from representing
the case. Sometimes the aim is to discourage the counsel from embarking on a
specific legal step, such as producing evidence of corruption or wrongdoing in
court. Another frequent occurrence, lawyers say, is retaliation after a verdict
has been reached, or attempts to discourage legal efforts to see a judgment
enforced. Lawyers have also been attacked by their own clients for losing in
court.[118]

Many lawyers report that most threats come from persons who
claim to be members of criminal gangs, or "secret societies [hei shehui]."[119] Some
newspaper accounts have reported that secret society members discouraged
victims of intimidation from going to the police by claiming that they had
links with Public Security Bureau or government officials.Consequently, the "secret societies" act with
near-total impunity.[120]
In this context, threats are a sufficient deterrent keeping victims and even
legal professionals from turning to the Public Security Bureau.

Intimidation of lawyers by criminal elements is reportedly
particularly acute in disputes related to real estate and property ownership.
Lawyers representing residents who are trying to bring lawsuits against
property development have been threatened to get them to drop their cases or to
encourage their clients to accept the terms of the real estate companies.
Because of the prevalence of local protectionism, lawyers are also more at risk
of violence and intimidation when they travel to a local area to represent an
outsider or a party that is viewed unfavorably by the local power holders. A
local company trying to keep out a competitor might benefit from the local
authorities "looking the other way" when they use illegal influence or criminal
intimidation for that purpose.[121]

Lawyers say that law enforcement agencies, which tend to see
lawyers as an impediment to their work, do not prioritize investigating threats
or tracking attackers. Attacks against lawyers also do not seem to be seen by
the Public Security Bureau or the Procuracy as constituting the kind of
substantial threat to the legal system and the judiciary that warrants a
vigorous and speedy response.

We were unable to find any reports in official media over
the past five years of cases involving assaults or threats against attorneys
that were successfully brought to prosecution, including cases that would have
established a link between the attackers and one of the parties to a legal
dispute.

Because of these obstacles, lawyers themselves are reluctant
to press charges and bring attention to attacks or threats they suffer. As a
lawyer working at a legal aid center in Beijing
told Human Rights Watch, threats are
"part of the job," and "every lawyer has to exercise his own judgment in
minimizing these risks."

Lawyers also fear making it known that they have been
targeted, as doing so could damage their ability to maintain or attract
clients. "It is bad for business because the client must be confident that
his/her lawyer has sufficient status, connections and experience to be effective
in defending his/her interests."[122]
Admitting to having been the target of intimidation or reprisals undermines the
prestige of an attorney and exposes his vulnerability to extra-legal factors.[123]

Bar associations do not publish accounts or numbers of threats
or attacks against their members because it is considered "too sensitive" and
might reflect poorly on both the profession and the legal system at large. For
that reason, lawyers say that they seldom report assaults and threats to the
bar association, which contributes to the difficulty in assessing the extent of
the problem and effectively remedying it.

Lawyers complain that two additional factors contribute to
their vulnerability.Lawyers have
relatively weak institutional status in the Chinese legal system: as
"outsiders" they are an easy target for intimidation. Prevalent corruption
within law enforcement agencies also heightens their vulnerability. Lawyers try
to enlist the media to cover their cases and help them overcome official unwillingness
to take action.[124]

VII. Prosecution for Perjury

A particular subject
of concern to criminal lawyers is their vulnerability to prosecution for the
crime of "falsifying evidence" under article 306 of the Criminal Procedure Law
(article 307 universally prohibits falsification of evidence and perjury). This
article prohibits lawyers from tampering with evidence and "coercing or luring
witnesses" into changing their testimony and applies in situations in which
witnesses recant statements made earlier (in most circumstances, to investigative
organs).[125]

Although article 306
is not on its face objectionable, in practice it has been manipulated to
intimidate lawyers or prevent them from effectively representing their clients.
Some lawyers have been charged under article 306 after defendants or witnesses
misrepresented facts to them or fabricated evidence without their knowledge. In
other cases, prosecutors have brought charges against defense lawyers because a
witness or client claimed an earlier statement to investigators was made under
duress or for other reasons was inaccurate.

The provisions of article 306 are particularly detrimental
for the rights of the defense because they make challenging the evidence
presented by the prosecution highly risky for a lawyer. Lawyers in general are adamant that many cases of alleged falsification
of evidence are initiated in bad faith by the prosecution, as a way to
retaliate against the defense, in what is commonly called "judicial retribution
[sifa baofu]":

Article 306 is vaguely phrased, and in particular there is
no certainty about what exactly constitutes 'luring [yin you]' [a client or witness to falsify evidence]. In practice,
if the client himself changes his testimony the lawyer is the one considered to
have forged the evidence, and there are very big difficulties in defending
against that sort of thing. This leads to a situation where many criminal
defense lawyers can easily be detained.[126]

A lawyer interviewed
by Human Rights Watch said that the
risks presented by article 306 had made criminal cases the least attractive to
defend:

Lawyers in China often joke: 'If you want to do law, avoid
at all cost being a lawyer; if you want to be a lawyer, avoid at all cost
criminal cases; if you do criminal cases, avoid at all cost gathering evidence;
if you want to gather evidence, avoid at all cost taking testimonies. Ignore
all this, and it is you who will end
up in a cell!'[127]

This situation has a
clear chilling effect for defense lawyers, who may decide to defend clients less
forcefully than they otherwise would for fear of displeasing the prosecution.
As one lawyer told Human Rights Watch:

If the prosecutor's office tells you, 'If you present this
testimony in court we will arrest you for tampering evidence,' what do you do?
Do you go ahead and present the testimony nevertheless? In fact you have really
no choice; you must find another entry point into the case to defend your
client.[128]

Zhang Jianzhong, a prominent lawyer and advocate who served as
the head of the committee on lawyer's rights of the Beijing Lawyers
Association, was arrested in May 2002 and sentenced to two years in prison in
December of the same year under article 307 for allegedly having assisted with
the fabrication of evidence. Many lawyers speculated that this case was
retribution for his having mounted a vigorous defense in two of the most
high-profile corruption cases involving government officials in recent years, the
cases of Li Zhou and Cheng Kejie. In an unusually strong and public response,
over 500 lawyers signed a petition in his support, while legal academics and
the All-China Lawyers Association submitted legal analyses to help his defense.

In another case, Chongqing
lawyer Jiang Daocai spent 197 days in prison in 2004 on charges of helping his
client to destroy evidence. Eventually the prosecution agreed to drop the case
when the court deemed the charges baseless. While in jail Jiang was prohibited from
taking up any cases. In its verdict, the Chongqing Yongchuan municipal court
wrote that "the procuratorate of Yongchuan had no basis for initiating the
prosecution of Jiang Daocai." But Jiang had been sufficiently discouraged. He
subsequently told a journalist:

I don't know if I will ever be able to be a lawyer again,
and I don't know if I am still suitable to be a lawyer. I am now learning to be
a driver, this is a great feeling…. Many of my lawyer friends have changed
paths, because of the conditions prevailing in the legal profession.[129]

Wang Wanxiong, a
lawyer from Hubei's
Tijiang municipality law firm, was arrested in July 2001 on the instruction of
the Procuracy. In February 2002, the local court acquitted him and he was
released, but the Procuracy appealed. It was not until March 2004 that the
Hubei People's High Court finally fully exonerated him.[130]

Wang Yibing,
a lawyer from a Heilongjiang law firm working
in Kunming (Yunnan province) was detained in December
1997, before being acquitted by the appeals court two years later.

The manipulation of
article 306 also contributes to the general impunity for police officers who
engage in torture and ill-treatment of suspects in pre-trial detention, a time when
officers are particularly eager to obtain confessions. Many lawyers would like
to be able to challenge depositions obtained under duress, but are unwilling to
do so because of the risks of prosecutions. The UN Special Rapporteur on Torture
Manfred Nowak recommended in 2005 that the government "Abolish Section 306 of
the Criminal Law, according to which any lawyer who counsels a client to repudiate
a forced confession, for example, could risk prosecution."[131]

Public concern in China
has grown since 2005, when two high profile cases of wrongful convictions were
revealed. She Xianglin, a villager from Hebei, was freed after serving 11 years for
the murder of his wife, after she returned alive to her village. Another man,
Nie Shubin, turned out to have been wrongly executed for a rape and murder
after the real killer confessed.The president of the Supreme People's
Procuratorate, Jia Chunwang reported in March 2006 that 930 officials had been
investigated for torture of detainees in 2006, adding that the issue "had not
been effectively scrutinized and addressed."[132]

It is unclear how many
lawyers have been prosecuted, detained, arrested, sanctioned or effectively
prevented from defending their clients through the manipulation of article 306.
According to a prominent lawyer interviewed by Human
Rights Watch, a survey by the All-China Lawyers Association showed
that over 500 lawyers were detained, accused, or sanctioned for falsification
of evidence under article 306 between 1997 (when the article was introduced)
and 2002, but 80% of them were ultimately cleared of any wrongdoing. The survey has not been published.

In 2006, sources
quoted by the Ministry of Justice-run Legal
Daily put the number of lawyers detained in connection with such charges at
200, though the article did not specify the period considered.[133]
Lawyers commonly assert that about 80 percent ofcases in which lawyers are prosecuted are
related to article 306 offences, although this may bundle together all the
difficulties encountered in gathering evidence, not only with respect to article
306.[134]

Some legal scholars
have argued that "falsifying evidence" became the weapon of choice to prosecute
lawyers as soon as it was introduced, replacing the use of embezzlement charges,
but that the number of prosecutions against lawyers has not increased overall.[135] They
also point out that retaliatory prosecutions also reflect the fact that
criminal lawyers have become more adroit in defending the rights of criminal
suspects:

Lawyers are intimidated and prosecuted because lawyers have
become more proactive, aggressive and innovative in defending the rights of
their clients and of their own, posing serious legal challenges that
prosecution has never encountered before. This challenge is possible because
criminal justice reform in China
in the past ten years has created opportunities and incentives for a growing
legal profession.[136]

In any case, the charge
that article 306 is often manipulated by the Procuracy is supported by the fact
that many cases involving such charges never reach the trial stage after police
or prosecutorial investigation. But even if the case does not lead to an
indictment, the lawyer loses considerable "time and energy to defend himself,
not to mention the amount of lost fees and his ability to work."[137]

This continues to
make criminal cases unappealing to lawyers. Following an article describing the
plight of lawyer Jiang Daocai in Chongqing, the
head of a law firm in Sichuan
province expressed thoughts typical of many in the legal profession:

This is why currently I am not doing criminal cases!... If
lawyers cannot guarantee their own protection, how are they going to protect
the rights and interests of their clients?[138]

Unsurprisingly,
there is a wide consensus among lawyers that article 306 should be repealed.
Many lawyers have written in professional publications to criticize the article
and its misuse by the Procuracy to retaliate against the defense.

As Chen Ruihua, a
law professor at BeijingUniversity who has argued
repeatedly against this provision, stated to the Ministry of Justice's Legal Daily in July 2007:

The only way to put our worries to rest is to abolish
Article 306. Otherwise, relevant authorities can seek criminal investigations
against lawyers on account of perjury and invoke Article 306 at any time.[139]

A prominent lawyer
who is also a delegate to the National People's Congress, Zhang Yan, has
repeatedly called for the repeal of article 306. As early as 2000, she
introduced a resolution calling for the withdrawal of the article. In 2006, she
again introduced a resolution to that effect, listing four main reasons for the
abolition, including the unwillingness of lawyers to take up criminal cases.[140]

Lawyers'
publications often cite the fact that the average number of criminal cases
taken up each year by lawyers in Beijing
dropped from 2.64 in 1990 to 0.78 in 2000, although this does not take into
account the fact that the number of lawyers grew considerably during the same
period.[141] The
risks of "prosecutorial retaliation," along with a system of fixed-fees that
make criminal cases financially unattractive, are cited by lawyers as major
factors that dissuade them from taking up criminal cases.

Article 306 has a
particularly deleterious effect on the ability of lawyer to represent human
rights cases. Victims of abuses committed by agents of the state, especially by
the public security, are already an irritation to the judicial authorities,
thus presenting a considerable disincentive for lawyers to take them as
clients, especially if the victims face criminal charges. It is telling that the
numbers of lawyers representing high-profile dissidents are very small; in
fact, a single law firm, that of Mo Shaoping, has represented the great
majority of them.And, as he points out,
"I have yet to win a single case."[142]

VIII. Limits on Ability to Represent Clients

Not only do we see cases of forced confession under torture,
illegal search, illegal detention, overtime detention, and other illegal action,
but such cases are not promptly investigated. This fosters illegality, which
leads to frequent miscarriages of justice.

-Legal Daily,
August 25, 2005

We were warned not to represent Tibetans.

- A lawyer from Beijing who
had volunteered to represent Tibetan arrested after the unrest in Lhasa, April 2008

Lawyers in China
routinely complain that their ability to represent their clients and participate
in court processes, particularly in criminal cases, is subject to many
arbitrary restrictions imposed by judicial institutions and interference by
other state institutions. They explain that judicial institutions routinely
ignore their procedural requests, engage in obstructionist or delaying tactics,
and at times threaten them with administrative or economic retaliation. Lawyers
say that courts and police often invoke
the "exceptional" character of a case to deny them basic defense prerogatives
such as gathering evidence, meeting their clients in detention, producing
witnesses and experts in courts, cross-examining prosecution witnesses, and
having access to complete court files.[143]

Restrictions are even greater in cases involving human
rights violations by state agents and politically motivated prosecutions.
Lawyers say that the outcome of cases involving dissidents charged with state
security or state secrecy crimes are dictated by the political authorities.
Under the current court system, cases deemed important or "especially
complicated" are reviewed by "adjudicating committees [shenpan weiyuanhui]," which are composed of senior judges and
judges who are often members of the Party's Political and Legal Committee.[144]
Lawyers do not participate in adjudicating committees meetings and their views
are not conveyed there.[145]

"Under this system, 'the judges who conduct the trial are
not the ones adjudicating it, and those adjudicating the trial are not the one
conducting it' [shen er bu pan, pan er bu
shen]-it completely invalidates the role of the defense," one lawyer told
Human Rights Watch.[146]

As lawyers and legal experts are quick to point out, Chinese
lawyers in effect rely on personal networks to circumvent these problems and
compensate for the overall "weak status of the legal profession."[147]

Some scholars have argued that
because lawyers enjoy so few effective powers, it is essentially through
personal connections with members of the judicial system bureaucracy that
lawyers are able to carry out any work at all.

The challenges [lawyers]
routinely face include various forms of obstruction, harassment, and
intimidation, and even physical abuse, often at the hands of personnel in the
public security administration (the police system), the procuracy (the public
prosecutor's office), and courts…. Surviving and even thriving in their hostile
institutional environment demands formal and informal ties to the state
bureaucracy.… [A survey of 1,000 lawyers conducted in 2000 by the author showed
that] ties to the state provided protection against various forms of
institutionalized, state-sponsored harassment and rent-seeking. Lawyers more
deeply embedded in the state reported fewer professional aggravations.[148]

Since the promulgation in 1996 of the Law on Lawyers, the
Chinese legal profession has generally been fairly successful in weaving
informal links with judicial personnel.It is these ties that ensure that a particular lawyer can assert many of
the rights clients are guaranteed and, because cases are arbitrarily decided by
the authorities, goodwill alone often determines whether lawyers are informed
of a case's current status, can gain access to court files, be notified in
advance of hearing dates, or learn whether there are political considerations
weighing on the case.

The efficacy of these arbitrary ties often leads external
observers to credit the legal profession in China with more legal authority in
judicial processes than lawyers actually possess. More importantly, this type
of relationship-based goodwill from the judiciary does not extend to cases that
are particularly contentious or seen as politically risky, such as human rights
abuses committed by judicial personnel or the police; the trial of political
dissidents, religious dissenters, or members of groups explicitly designated as
threats to the security of the state, such as Uighur or Tibetan nationalists; cases
alleging corruption of government and Party leaders; and specific cases linked
to incidents of social unrest. In such cases, ties with judicial system
officials are by definition of little help; indeed, the very act of taking on
such cases may destroy ties a lawyer has been working to build.

Lack of access to criminal suspects in detention

Criminal lawyers face immense obstacles in gaining
permission to visit their clients in detention, particularly in the pre-trial
stage, before they have been formally charged. This situation is a concern both
in terms of the rights of defendants and the rights of defense attorneys, as
detailed below. Furthermore, suspects are vulnerable because of their lengthy
incommunicado detention by law enforcement agencies, extraction of confessions under
duress, ill-treatment, and torture.

The right to access clients in detention

Under Chinese law, a criminal suspect can retain a lawyer
after his first interrogation by the investigative organs or from the day the
detention starts.[149]
The right of a defense attorney to access accused persons in detention is
guaranteed by theLaw on Lawyers and
by the Criminal Procedure Law. One important exception in the Criminal
Procedure Law concerns cases "involving state secrets," for which the hiring of
a lawyer is conditioned on approval by the investigating organs.[150] In those cases, the
time limits and procedures to gain access are set by specific regulations
issued jointly by the Supreme People's Court and six other ministries and
committees with legal responsibilities (hereafter "the Joint Regulations"), complemented
by institutional regulations of the Public Security Bureau, the Procuracy, and
other institutions involved.[151]

The Joint Regulations provide that law enforcement agencies
must comply with a valid visit request from a retained lawyer within 48 hours
in ordinary cases, and within five days if the cases involve organized crime or
are "especially complicated."[152]
In cases "involving state secrets" the right to visit is conditioned on the
approval of the investigation organs.[153]

Typical violations of the rights to access suspects documented
by lawyers and legal experts include: failing to inform the criminal suspect of
his right to retain a lawyer, refusing or delaying his request to appoint a
lawyer, failing to inform the family of the detention and of their right to
retain a lawyer on the behalf of their relative, failing to inform the lawyer designated
by the criminal suspect that he has been selected, denying permission for the
lawyer to visit the suspect, and falsely claiming that the case involves state
secrets.

According to a Chinese study:

The impossibility for a lawyer who has been retained to see
a criminal suspect remains the biggest and most often seen problem of criminal
defense lawyers. Legally endowed rights cannot be exercised.[154]

The few publicly available empirical studies seem to support
this conclusion:

·A survey of police station detention cells in Beijing's Haidian district
indicated that lawyers were able to visit only 14.6% of detainees under
investigation, even though 46.3% of the demands to see a lawyer from pre- and
post-trial detainees were met.[155]

·Another partial survey of 200 detainees in Beijing showed that 75.5%
were never told by the investigators that they could request a lawyer. 17.3% of
those who requested a lawyer were told that it was useless to do so, 12.2% were
scolded by the investigators, and 12.2% were told to ask again later.According to the Procuracy, 57% of criminal
suspects have signed a retainer agreement with a lawyer.[156]

·A survey carried by the Beijing lawyers association showed that in
one-third of the cases, lawyers were denied access to their client. "In most of
these cases, the investigative organs refuse to organize access to the detainee
with or without reasons; when lawyers seek to obtain a retainer agreement,
often there are able to do it "only through using extralegal methods [fei falü de shouduan] like making
representations to the leaders or the higher departments.'"[157]

·One lawyer told Human Rights Watch that the ACLA
has complained repeatedly to the judicial authorities about the issue of access,
attaching a compilation of actual cases in which access was denied, but none of
these documents were made public. One such study, a survey carried out by the
Committee on Lawyers Rights of the Beijing Lawyers Association in 2006,
indicates that 90% of the respondents "must repeatedly apply before getting
approval for a visit, and most of the time cannot see their client within the
48 hour limit."[158]

Restrictive practices

Many Chinese lawyers and legal experts claim that as a
matter of course the Public Security Bureau often denies any contact with lawyers
until at least after the investigation is completed, the defendant is formally
charged, and the case has been handed over to the prosecution. Only a fraction of
criminal suspects are able to meet their counsel before they are charged. In
some cases, lawyers have been entirely unable to secure even a single meeting
before the trial takes place.

When lawyers do manage to gain access to their clients,
lawyers complain that visits are few, brief, and often conducted in the
presence of a representative of the investigation or in non-confidential
settings.

To see his or her client, a lawyer is required to fill out
an "application to access criminal suspect" and obtain approval from the Public
Security Bureau where the suspect is detained. Lawyers point out that internal
Public Security or Procuracy regulations, which sometimes vary from place to
place, expand on the exceptions set forth by the Criminal Procedure Law, often
specifying other cases where the application can be turned down, such as
"especially complicated cases," or "cases related to organized crime."[159]
These provisions contribute to law enforcement officials' perception that they
can deny visits outright.

Law enforcement agencies typically "give [only] pretexts or
no reason at all" when denying or delaying lawyers' requests to visit their
clients.[160]According to one lawyer interviewed by Human
Rights Watch:

The Public Security doesn't grant you access; they just
don't. They don't tell you why. You file your application [for a visit], and
that's it-no reply. What can you do? You have to know personally the court
officials [to intercede], but sometimes it doesn't help. You have to look at
the local conditions. If the Public Security doesn't want it, the fact is that nobody
can force them.[161]

Judicial personnel also obstruct lawyers when they apply to visit
their clients. A news report quoted a lawyer complaining that "the thing
lawyers hear most often when applying to see a client is the sentence: 'The
handling person is not there.' And this 'handling person' can never be found."[162]

Another lawyer complained about delaying tactics used by
some courts.

Very often, the answer to a request for a visit is 'Please
wait.' And you wait for one, two hours. There is no reason for it; this is just
to wear you out. In the end they tell you that you can't see your client.[163]

Other typical excuses cited by a legal scholar include "the
responsible person is on a business trip, it may be a long time until he comes
back," "the leaders are not there," and, "This is an economic case, the
circumstances exceptional."[164]

Legal scholars have pointed out that this phenomenon is more
than just a smattering of anecdotal complaints, but rather a deliberate
practice of obstructing the work of lawyers by the judicial institutions:

Many departments 'pass the ball around [tipi qiuI]': The Public Security Bureau says
that the case is already with the Procuracy; the Procuracy that it has not yet
been filed, or that it is already with the court. And so on and so forth. The
actual visit very seldom takes place within the fixed time limits. It takes at
least a week, most of the time a month, sometimes even longer to gain access to
a suspect. Sometimes, the visit is denied, especially if it is the Procuracy
itself that is conducting the investigation.[165]

Many lawyers have endured such ordeals. A lawyer from the
established Liu Hule law firm in Yunnan province held the firm record of
visiting the police station 22 times in 40 days, finally getting to see his
client for a mere 30 minutes.[166]
The lawyer for Hua Huiqi, an underground Christian, never gained access to his
client, and Hua was even tried in camera
with Hua himself kept from entering the court chamber.[167]

Environmental activist Wu Hongli was visited by his lawyer
only after many months of detention. His wife reported that Wu had told her he
had been tortured in detention and that she saw torture marks on his body.[168]

Another reason frequently advanced by law enforcement
agencies to deny lawyers permission to visit their client is that the suspect
is not in criminal detention but in one of the various forms of "administrative
detention" such as "summoned for detention" (juchuan), bail (jubao houshen),
or supervised residence (jianshi juzhu).These measures have their own specific maximum
time limits, but in practice are often manipulated to justify extended
incommunicado detention by the investigators.

Invoking state secrets as a pretext to deny access
to detained suspects

In politically sensitive cases and cases involving political
offenses such as subversion or crimes against state security, the police
frequently invoke the involvement of "state secrets" to deny attorney-client
meetings. Recent cases include those of Zhou Heng, Lü Gengsong, and Yan
Chunlin.

The dissident Lü Gengsong was denied the right to hire a
lawyer of his choice by the Public Security because his case allegedly involved
state secrets. A former instructor at the ZhejiangPoliceCollege, Lu was arrested
in August 2007 on suspicion of subverting state power and illegally holding
state secrets after he wrote a series of articles about official corruption and
the need for political reforms. Lu's wife tried to hire two Beijing lawyers, but was notified in writing
by the Xihu Public Security Bureau that Lu was not allowed to hire a lawyer
because his case involved state secrets.[169]

She then tried to travel to Beijing, but was stopped near her home town
by officers of the State Protection Bureau. After she finally managed to retain
Mo Shaoping and Ding Xingkui as lawyers, the same Public Security officials
pressured her on two occasions to dismiss them and engage a local lawyer from Hangzhou. She stood firm.

Zhou Heng, a bookshop operator in Urumqi
(Xinjiang province) and member of an underground Christian group, was denied
access to his lawyer for over six weeks by the Public Security Bureau on
allegations that his case involved "state secrets." Zhou was arrested on August
3, 2007, after a large shipment of bibles sent to him from overseas was seized
by the police. (Under Chinese law, bibles and religious material can only be
printed by domestic pre-approved printing presses.) He was held on suspicion of
illegal business activity and detained at the Public Security-run Xi Shan
detention centre. His lawyer was finally able to meet him on September 14, but
two police officers sat in on the meeting.[170]

Yang Chunlin, an activist representing a group of evicted
farmers in Jiamusi, Heilongjiang province, was denied any
contact with his lawyer after his arrest in July 2007. Yang was formally
arrested on suspicion of "subverting state power" in September 2007. Yang had
led a group of farmers to demonstrate in front of a government building,
carrying banners with the slogan "We want human rights, not Olympic games."
Yang's wife contacted a Beijing
lawyer, Li Fangping, to defend him. The Public Security Bureau, who was
apparently monitoring her telephone, tried to dissuade her from hiring Li,
reportedly telling her "If you hire a lawyer from Beijing the sentence will be heavier." Yang's
lawyer applied to visit his client on September 7, 2007. He was informed that
permission was denied because the case involved state secrets.[171]

Lawyers state that they have no effective recourse against
denial of access to their client, and legal statutes provide no specific
remedies aside from an administrative lawsuit under the administrative
litigation law. Human Rights Watch
is aware of very few cases where such challenges have been successful. Some
courts have ruled that administrative acts emanating from the judicial power
cannot be reviewed in administrative courts.[172]
This leaves no recourse at all when law enforcement agencies do not comply with
a request for a visit.

As detailed above, may dissidents, civil rights activists,
religious figures, and defendants charged with vaguely worded state security
offenses, such as subversion, state secrets, harming state security, or
separatism have been detained for lengthy periods of time, sometimes the entire
pre-trial period, without access to a lawyer.

Lack of redress for violations of procedures

Chinese legal experts point to the disproportionate power
wielded by law enforcement agencies, which are easily able to flout procedural
rules,[173]
in obtaining redress for procedural violations. Chen Guangzhong, a criminal
procedure law professor at China's
Politics and LawUniversity, says that the root of the
problem is that "the Public Security has too much power":

The Court decides about guilt, the Procuracy about arrest,
but it is the Public Security who decides about visits. The Court and the Procuracy
are absolutely helpless with respect to access to lawyers.[174]

According to another Beijing
criminal lawyer, in many cases the Procuracy itself shies from challenging the
Public Security over forced confessions. If the Procuracy has doubts about the
veracity of witness statements or confessions, it may try to invalidate them by
finding mistakes and ruling out the evidence on that basis rather than directly
rejecting the evidence because it was obtained under duress.

The newly revised Law on Lawyers, which will take effect on
June 1, 2008, has removed all exceptions to the right to meet with an accused
person in detention, including for cases "involving state secrets." However, only
when the Criminal Procedure Law-which at present allows for such restrictions–is
similarly revised in the same sense will the change be effective.[175]
After the revisions to the Law on Lawyers were promulgated in October 2007, lawyer
Mo Shaoping told the South China Morning
Post that he did not expect the revisions to effectively protect the rights
of lawyers: "A police officer could say no to a lawyer's request under the
Lawyers' Law, claiming that he is not governed by the industry-specific law,"
Mr. Mo said. "Without changing other relevant
legislation, amending the Lawyers' Law alone cannot protect lawyers' rights."[176]

Above all, lawyers insist that the main obstacle to their
carrying out their duties remains the government's failure to implement the
existing rules.

Lack of access to case files

In criminal trials, the right and ability of the defense to
access appropriate case information, files, and documents-including the
evidence on which the prosecution is based-is a key component ofdue process and a fair trial. Chinese lawyers commonly rank "difficulties gaining
access to court documents [yuejuan nan]"
as one of the top three difficulties that the legal profession faces.

Limited rights under the law

Under Chinese law, lawyers enjoy the right to "consult, excerpt,
photocopy and duplicate case material" during the prosecution and court stages
from the first day the case is filed.[177]
Upon the filing of a written request, the People's Procuratorate must provide
the defense counsel with a specified list of procedural documents, such as
detention and arrest warrants, search and seizure orders, lists of witness
affidavits, and forensic diagnostics. Once the case is filed in court, the
lawyer is also entitled to access "the material of the facts of the crime,"[178]
the latter being defined not as all the evidence brought by the prosecution,
but only as "the principal evidence."

The concept of "principal evidence[zhuyao zhengju]" is highly
constraining, because it leaves judicial authorities with virtually untrammeled
discretion in deciding what should be communicated to the defense counsel. For
instance, lawyers often are provided not with actual testimonies of witnesses
from whom depositions were taken by investigators, but only the list of
witnesses interrogated. Key documents, such as the deposition of the criminal
suspect, full witness statements, and key physical evidence are not generally made
available.

Another serious burden on defense rights is that only
evidence in support of the accusation is considered as "principal evidence."There is no obligation for the Procuracy to
communicate potentially exculpatory evidence. This puts the defense at a significant
disadvantage. As one Chinese legal expert writes:

Using this system of 'communication of the principal
evidence,' the procuracy….simply
selects what supports the accusation, and according to them this cherry-picked
evidence unquestionably becomes the 'principal evidence.'[179]

Since evidence withheld from the defense is not precluded
from being used at trial, even key evidence is at times kept from the defense lawyer,
"so as to reserve the 'heavy artillery' for the hearing," as one lawyer put it.[180]

In essence, as Chinese study on lawyers concludes, lawyers
are "powerless" in accessing substantive documents:

It is not hard to fathom, that at any given stage, the main
documents that the lawyer can check are procedural documents. He has no means
to acquaint himself fully with the substantive ones. This results in the lawyer
basically being powerless to fully grasp the details of the case.[181]

Routine procedural violations

Lawyers also complain of other difficulties in accessing
case files, even when those difficulties explicitly violate clearly-stated rights.
The prosecution often disregards time limits. "The law says that the prosecution
has a maximum of five days to grant access to the case file, but in general the
minimum is one week, most often one month, some times even more," according to
one lawyer interviewed by Human Rights Watch.[182]At times, the prosecution sometimes
justifies its refusal to let lawyers access the case files by claiming that the
case involves "other suspects that have escaped," or "state secrets," or that
the case is "especially complicated." At other times, the applications for the
consultation of the case file are simply left unanswered.

Personnel of the Procuracy and courts also frustrate lawyers
through tactics that run counter to their obligation to "facilitate" lawyers
access to case documentation, as set by court regulations. The tactics include:
impractical locations for reading the documents (a lawyer reported that he had
once to bring a flashlight because the light bulbs in the windowless room were
dead), poorly maintained photocopy equipment and exorbitant photocopying
charges, arbitrary delays, and hostile behavior of court employees. Lawyers believe
that many of these obstacles are intended to remind them of their low status within
the larger legal system.

Lawyers have no effective remedies against these obstructions.
A typical assessment made by lawyers is that their procedural "rights" are empty:
"Despite the guarantee of the lawyer's right to access documents, because there
is no operative definition of this right, it remains without any force."[183]

One lawyer told Human Rights Watch:

The judicial organs will only give you what they want, and
it is not uncommon to see the real evidence only on the day of the trial. This
is like a tiger blocking the road. Chinese lawyers are powerless.[184]

Lawyers agree that they face even greater hurdles when they
represent sensitive political cases.

If the case is politically sensitive, everything is decided
by higher-level authorities: the court officials have to ask for instructions
before they give you access to the court file, they won't dare to take the responsibility
themselves. They tell you 'this is a special case, we are not in a position to
decide'.[185]

Court officials also delay access on small pretexts. For
instance, court personnel reportedly told lawyers for rights activist Guo
Feixiong they could not access his court files because they could not find the
key to the file cabinet. Guo had been formally indicted on charges of alleged
"illegal business activities" on May 15, 2007, but the court delayed access to
the case files until May 23. Guo's lawyers, Mo Shaoping and Hu Xiao, flew from Beijing to Guangzhou
for the appointment. But on arrival, personnel told them that a "technical
issue" made it impossible to see the file: the court official with the only key
to the file cabinet was away and would not return until the next afternoon.[186] A few days later,
Guo's lawyer finally obtained the file, although it contained none of the
depositions made by Guo or his allegations that he had beentortured.

The Chinese government has acknowledged that lawyers face unreasonable
obstructions in accessing court documents, and have urged judicial authorities
to address the problem. In March 2006, for instance, the president of the
Supreme People's Court, Xiao Yang, reiterated that "[the judicial authorities]
must establish conditions to provide necessary convenience for lawyers to
consult, summarize, photocopy, and duplicate case material."[187]

Intimidation of witnesses and lack of access to evidence

The ability of Chinese lawyers to gather evidence either
independently or through the courts, to produce and examine witnesses, and to
seek judicial redress when their rights are violated in the course of such
attempts is sharply limited by statute and by practice. These limitations are
particularly severe in criminal cases, as well as in cases deemed sensitive by
the authorities, such as those alleging human rights violations. Generically
termed as "difficulties in gathering/collecting evidence [shou zheng nan]," these limitations feature as one of the "three
top difficulties [san lao nan, san da nan]"
lawyers face, along with access to clients in detention and to case files
detailed above.

Most testimonies in Chinese courts are in the form of written
affidavits. According to a comprehensive survey carried in 2004, fewer than 1
percent of witnesses who give depositions before trial subsequently appear in
court to testify.[188]
This puts the defense at a significant disadvantage, as they have no ability to
examine prosecution witnesses or produce their own witnesses. They are not
entitled to attend depositions.

"It is usual for the Public
Security to threaten witnesses," one criminal lawyer told Human Rights Watch. "They
say: 'We already have your testimony … if you change it, we will accuse you of
perjury and arrest you.'"[189]

Chinese and foreign legal scholars who have examined how to
improve witness examination procedures point to the courts' lack of financial
resources, overwork, and poor coordination with other officials, particularly
police, as key constraints.[190]
But lawyers contend that this situation is made worse by the obstacles they
face in taking depositions effectively or without interference, especially in
the light of other existing restrictions, such as limited access to case files.

Many lawyers told Human Rights Watch
that the police often interfere with their activities and intimidate plaintiffs
and witnesses.

Because the Public Security often 'gives pressure' to
witnesses, it is very hard to interview them. They are afraid…. When you go to
a small town and the police are following you all the time, what kind of
testimonies can you get?[191]

Sometimes, lawyers are forcibly kept away or sent back by
the local authorities.

We went to this rural place to take the deposition of
forcibly evicted farmers… but the Public Security stopped us at the restaurant
where we were having lunch. They said that this matter had already been
investigated…. A few individuals were 'creating trouble,' and for our own
security [the police] could not let us go around freely…. They drove us back to
the nearby township and stayed with us until we boarded the train back.[192]

Another common problem is impunity for acts of intimidation
by non-state agents who appear to be acting at the behest of local power
holders. A lawyer told Human Rights Watch about a trip undertaken to investigate
a dispute over compensation for resettlement in Sichuan province.

The whole time we were interviewing the residents [who
claimed they were owned compensation after having been resettled] unidentified
individuals followed us.… They harassed us, blocking our way, making snide remarks,
trying to dissuade residents from talking to us … We complained to the police
but they didn't do anything.[193]

Many lawyers point out that such hurdles are inevitable:

These are lawyers' 'professional risks'. In China,
this is the way it is…. We have our techniques. For instance, when we go
investigate a particular place, we never stay in a hotel on site but spend the
night in a neighboring town…. Also, we never go alone. This way, it is safer.

As illustrated throughout this report, these techniques are
far from being foolproof. When two Guangzhou
lawyers retained by a group of Taishi villagers in 2005 attempted to
investigate the situation there, they were attacked by a group of unidentified men
and one of them was slightly injured. Their law firm unilaterally decided to
end their representation of the villagers.[194]

In another case, Ren Hua, a well-known lawyer from Beijing and author of a public appeal to the National
People's Congress and the State Council to abandon the petitioning system of
"Letters and Visits," went missing for three days after an attack by thugs in Hunan province in August
2007.

Ren had been conducting investigations with three other
persons for two days in Jiangshui township, where some residents were accusing
the local authorities of embezzlement, forced eviction, and official collusion
with businessmen. On August 5, 2007, unidentified thugs burst into their hotel
room, in the nearby city of Yongzhou.
Ren sent a text message to friends in Beijing
describing the incident and mentioning that two people were injured, and then disappeared
for three days. The local Public Security Bureau denied any knowledge of his
whereabouts to relatives and journalists from Radio Free Asia. Although Ren never spoke publicly about the
incident, other lawyers told overseas media that he had been detained by thugs
acting at the behest of local officials wanting to prevent scrutiny of their
administration.[195]

Lawyers also say that they often face great difficulties in
gathering physical and documentary evidence. The Law on Lawyers stipulates in
general terms that lawyers have the right to request evidence from work units
(the Chinese term for public and private bodies) or individuals.[196]
The extent of this right is detailed in the Criminal Procedure Lawand various regulations and
interpretations issued by the judicial authorities.[197]

In criminal matters, the right of lawyers to "collect
evidence," including witness testimonies and depositions, is conditioned on
prior approval by the prosecution and agreement by the institution or
individual to which the inquiry is directed. This system of "double permission
[shuangchong xuke]" mandates that the
defense submit a written application to the prosecution or the court to approve
discovery procedures,[198]
such as obtaining official records from public or private institutions and
individuals, taking testimonies, producing witnesses in court, and obtaining
subpoenas for witnesses and documentary evidence.[199]

Lawyers also complain that judicial authorities typically
ignore or frustrate their efforts to collect information and evidence during
the pre-trial stage. One lawyer from Hainan
told Human Rights Watch:

Collecting evidence is an impossible task for Chinese lawyers.
The gongjianfa's [judicial organs'] mentality
is still that we are the 'enemy,' so they will not cooperate. You can present
your own evidence but the court will just ignore it, saying it is not valid.[200]

Numerous professional publications by lawyers and legal
experts echo the systemic problems encountered in gathering evidence. A typical
article published in China Lawyers,
published by the All-China Lawyers Association (ACLA), deplores lawyers'
inability to collect information:

Under a situation where it is impossible to get appropriate
relief from the judiciary, lawyers are powerless in trying to conduct normal
investigation and collect evidence. This translates into difficulties in
defending plaintiffs.[201]

Despite repeated promises by the government since the
enactment of the Law on Lawyers in 1996 that the judicial authorities would
improve their "cooperation" with lawyers, specific procuracy and court
regulations make clear that those authorities enjoy almost unfettered
discretion in granting or refusing lawyers' applications for discovery of
evidence or examination of witnesses. One provision in the People's Court
Regulations, for instance, indicates that courts are to consent to a lawyer's
demand "if the court believes it is indeed necessary [renwei queyou biyao de]." There are no further provisions
explaining what criteria courts are to apply in determining whether the
evidence is "necessary."

According to a Beijing
criminal lawyer, courts often resort to unmotivated refusals:

Whether it is the procuracy or the court, the answer is
always the same: 'We believe there is no necessity.' There is nothing you can
do about it. It's discouraging.[202]

Even when the judicial authorities agree to a lawyer's
request to obtain evidence from a third party, the absence of explicit legal
provisions relating to the disclosure of information gives ample ground for
refusal to cooperate from those who have been asked to provide information.
According to a Shanghai
lawyer:

When lawyers direct their inquiries to an official
ministry, the relevant departments put up all sorts of obstacles such as
'refusal on the grounds that they give material to the procuracy, not to lawyers.'[203]

The difficulties that lawyers and their clients have in
obtaining hospital records are an illustration of the problem. In Beijing, lawyers
representing HIV-AIDS patients, and patients who had been subjected to trial
drugs without their informed consent, faced enormous difficulties in obtaining
simple information such as patient records, financial documents, and
administrative records from the hospital:

The least you can say is that they were not forthcoming. We
asked for certain documents, such as consent forms and they refused…. We
pressed them, and finally they provided them to us. But then we realized they
were forgeries: the dates were wrong.[204]

Lawyers say that it is difficult
and time consuming to try to obtain a court order when third parties are not
cooperating, and futile when state organs are concerned.

The October 2007 revisions of the Law on Lawyers indicate
some willingness to strengthen the right of lawyers to access case documents,
in particular specifying that the work units and individual "ought to cooperate
[yindang yuyi peihe]." But the
accessible information remains limited to the "principal evidence" as decided
by the prosecution, and domestic legal experts insist that only a revision of
the Criminal Procedure Law could effectively improve access to case
information.

Restrictions on free expression and use of media by lawyers

The ability of lawyers to obtain justice for their clients
is constrained by limits on freedom of expression and information.[205] While the central
government makes use of media exposure and "public opinion supervision [yulun jiandu]" to promote its policies
and keep local officials' corruption and abuses of power in check, it maintains
that the media should not be allowed to become a platform for criticizing or
opposing CCP rule, which in turn may result in limiting the exposition of
official wrongdoing.

Academics are now mostly free to discuss any legal topic in
academic settings, although publishing in newspapers or journals remains
tightly controlled and some outspoken advocates of legal reform have been
blacklisted or temporarily suspended from teaching.[206] An increasing
number of controversial cases are debated in the media, and lawyers themselves
often make the media part of their overall litigation or defense strategy.[207] Widening internet
access has also eroded the government's traditional monopoly over the means of
publication.

At the same time, Party authorities routinely censor the
coverage of cases that may embarrass the authorities, typically stating that
the case could have "a negative influence on public sentiment" or could be
"detrimental to social stability."

Many cases that expose wrongdoing by local officials or
local governments are likely to be suppressed in the local media, which are
under the supervision and control of the local authorities (through the News Publishing
Bureau, the Propaganda Department, and various Party committees). But in some
cases, the influence of these local power-holders does not extend to media from
other provinces or to national media. Chinese journalists are well aware of
this and the practice of "reporting from another location [yidi baodao]"-exposing a problem in one province in the media of
another province-is a common technique to circumvent local censorship.

Numerous national television programs report on cases of
local official wrongdoings that have been brought successfully to court, often
through long tribulations. But according to journalists, a significant
proportion of these investigations are also never broadcast because either they
are considered too sensitive by the government or because the local authorities
have been able to convince the central authorities not to air them.According to a journalist working for a domestic
newspaper, "once the Propaganda Department or the News Publishing Bureau, for
whatever reason, has issued an edict censoring a particular subject, it will be
very difficult to release it. No one will want to take the risk to report about
it."[208]

When reporting on a case is banned by local media, lawyers
sometimes turn to overseas Chinese media and to the foreign press in the hope
of overcoming resistance and protecting themselves by gaining a degree of
notoriety. But such international exposure can also turn into a liability for
the lawyers, and their clients, and many lawyers have been warned repeatedly
not to accept or conduct interviews with foreign media. In addition, a number
of local regulations governing the administration of lawyers explicitly limit
their right to talk to domestic and foreign media.[209]

The case of Teng Biao, a lawyer at the Beijing Huayi Law
firm and a lecturer at the University
of Politics and Law, is
emblematic of the risks run by lawyers who campaign publicly for their causes.

On March 6, 2008, at around 8.30 p.m., Teng was abducted by
plainclothes policemen as he was coming home. He was restrained, bundled into
an unmarked car, blindfolded, and brought to a secret location where he was
kept for 40 hours. Police told him he had been detained because of articles he
had written on protecting the rights of citizens, including an open letter to
the government penned with fellow activist Hu Jia,[210] who was sentenced
to three years' imprisonment a few weeks later. The police threatened to have Teng
disbarred, dismissed from his university position, and arrested on subversion
charges.[211]

"I was taken away on Thursday night. They shoved me into a
car and put a bag over my head," Teng told Agence France Presse after his
release.[212]
"They didn't show me any identification, but they said that they were from the
Beijing Public Security Bureau."[213]

"They told me not to talk to foreign journalists," Teng
said. "I can't tell you exactly what they said. They told me that I shouldn't
speak. There is a lot of pressure on me. There is no law that gives them the
right to silence me, it is only their threats."[214]

A former visiting
scholar at YaleUniversity's law school, Teng had received the French Republic Award
for Human Rights in December 2007. In April 2008, Teng co-signed an appeal by
28 lawyers offering legal assistance to Tibetan protesters who had reportedly
been detained after the uprising in Lhasa.
The appeal was censored on all internet sites in China.

IX. Control Over Lawyers' Licenses

Lawyers' licenses
must be registered yearly. Unregistered licenses are not valid.

-Article 12 of the Ministry of Justice's "Methods for the
Management of Lawyers Professional Licenses"

The first warning is that someone at the Judicial Bureau
will give you a simple phone call to invite you to "have a chat."

-W.Z., a Shanghai
lawyer, September 2007

Lawyers interviewed by Human
Rights Watch said that the risk of suspension or withdrawal
of their professional license was their greatest concern when handling cases likely
to trigger official retaliation. This risk, they say, is a powerful deterrent keeping
lawyers from taking on such cases.

In effect, Chinese lawyers must fulfill four conditions to
practice: (1) hold a personal professional lawyer's license, (2) each year
"register [zhuce]" this license with
the local bureau of the Ministry of Justice, (3) be a member of the local
lawyers association (which makes them automatically a member of the All-China
Lawyers Association), and (4) be employed by a registered law firm.[215]

Aside from the formal suspension of a lawyer's own
professional license, lawyers can be disqualified and barred from practice
through denial of the mandatory annual registration of licenses, loss of
membership in the local bar association, or termination of their employment
with a registered firm.

All the lawyers interviewed by Human
Rights Watch acknowledged receiving regular "pressure [yali]" from judicial bureau officials,
who warn them about unspecified "repercussions" of their work.

A number of human rights lawyers and lawyers with human
rights cases against state authorities have been disbarred or otherwise professionally
disqualified in recent years. This includes Li Jianqiang, whose annual registration
was denied without any written justification; Yang Zaixin, Zhang Jiankang, and Tang
Jingling, whose respective employers, under pressure from the local judicial
bureaus, did not endorse their application for re-registration; and Gao
Zhisheng, Guo Guoting, and Zheng Enchong, whose personal professional licenses
were suspended.

For judicial authorities the most expedient way to
disqualify a lawyer is to deny his re-registration at the end of the year,
because it does not entail the procedures required for formal suspension or
withdrawal. Although the year-end procedure is termed "registration [zhuce]," for all intents and purposes it
is an annual licensing process in which the judicial authorities are the sole
arbiter of whether the registration will be granted or denied.[216]

One lawyer told Human Rights Watch that the annual
re-registration was a sufficient deterrent for many in the legal profession to
refrain from engaging in sensitive cases "such as cases that can influence
society, cases against government officials, or mass cases":

The first warning is that someone at the Judicial Bureau
will give you a simple phone call to invite you to 'have a chat.' There is nothing
official in this, but lawyers get the message. It's a threat.[217]

To circumvent this ever-present risk, lawyers say they frequently
choose to handle cases that carry a risk of official retribution outside of the
area where they are officially registered. This effectively minimizes the risk
of a retaliatory suspension, as local authorities in a different province or a
smaller jurisdiction have little power over judicial bureaus situated
elsewhere, in particular in larger cities like Beijing,
Shanghai, or Guangzhou.

Still, lawyers say they this "outsider tactic" is of little
help if one becomes the subject of attention of the central authorities:

"Those with good relationships with judicial authorities
have nothing to fear, but those who take sensitive cases have to take a
calculated risk," one lawyer from Beijing
told Human Rights Watch.[218]
"Most lawyers just don't want to take this risk."

The disqualification of lawyers who handle sensitive cases
also sends a message to the rest of the legal profession.

Manipulation of the annual registration requirement

The requirement for lawyers to "register" annually is not
stipulated in the Law on Lawyers, but comes from a simple regulation issued in
November 1996 by Ministry of Justice, "Methods for the Management of Lawyers
Professional Licenses."[219]

According to this regulation, a lawyer's application for
renewal must be submitted to the judicial bureaus by the law firm for which he works.
The applicant must submit a number of documents describing his work during the
year, including proof of attendance at the mandatory training courses by the judicial
bureaus, which combine professional training with some political
indoctrination,[220]
and a summary of the work he did over the past year. The local judicial bureau
then "issues a vetting opinion [shencha
yijian]" before "transmitting it to the higher level" for registration. This
process gives great discretion to the judicial bureau to decide whether to grant
the re-registration. The standards upon which the "examination opinion" is
based are not publicly available.

Some domestic law experts have argued that the system of
annual registration is necessary in order to ensure that members of the legal
profession continue to attend the annual training needed to keep up in a
rapidly evolving legal system. However, there is evidence that the registration
is used as a way to exert influence over lawyers and make them dependent on the
Party and government authorities.

For many lawyers, particularly in large cities like Beijing and Shanghai,
this annual re-registration procedure can be a simple formality. But in smaller
places, it is a far greater concern. The lines of authority between local
power-holders or Party committees and the local bureaucracy are much shorter,
making it easier to retaliate against a lawyer by instructing the judicial
bureau not to grant the annual registration.

Denial of re-registration

Li Jianqiang, a lawyer from the Shandong Guanhua law firm
who had defended a string of human rights and political cases, was denied
renewal of his license registration by the Shandong Provincial Judicial Bureau
in June 2007.

Li, a graduate of the Chinese Literature Department of
People's University and of the Economics Department of the University of Politics
and Law, started his criminal lawyer career in 1994. He has represented
writers, journalists, dissidents, and members of underground churches,
including the writer Yang Tianshui, the poet Li Hong, the activist and artist
Yan Zhengxue, and the dissident Chi Jianwei. His license had already been suspended
once by the authorities in November 2003, but was reinstated later. Li also defended
Chen Shuqing, a member of the banned China Democratic Party, who was charged
with the crime of "subversion of state power."

In November 2006, Li published a short report on the
internet, "The situation of freedom of religion and freedom of expression in China
in 2006," which documented a series of violations, including those at issue in certain
cases he had defended, in very candid language:[221]

As the year 2006 ends, the general situation for freedom of
expression and freedom of religion in China has deteriorated. Within a
year, there has been a series of arrests and trials of liberal writers,
journalists, rights defenders, Christians and religious believers. Important
cases included the sentencing in Nanjing of the writer Yang Tianshui, who was
sentenced to 12 years, the rights defender Chen Guangcheng, to four years and
three months, the Hebei writer Guo Qizhen, to four years, the journalist from
Guizhou Li Yuanlong to two years, the Shandong writer Li Jianping to two years,
the Hunan journalist Yang Xiaoqing [though he] avoided criminal punishment, the
writer Li Zhangqing to three years.

In the second part of the year, there was also the arrest
of Gao Zhisheng, Guo Feixiong, Zhou Zhirong, Zhang Jianhong, Cheng Shuqing, Yan
Zhengxue, Chi Jianwei, and other rights defense lawyers, liberal writers, and
civil rights volunteers. At least 2,000 underground Christians have been
detained, among whom a few tens were tried or sentenced to
reeducation-through-labor. The general human rights situation in China
has deteriorated, and religious rights have also been severely repressed.[222]

The judicial bureau did not provide an oral or written explanation
for the 2007 refusal to re-register Li, but he attributed the sanction to his
work on human rights cases:

[The bureau] didn't even provide a reason; they just didn't
renew the registration of my license for the coming year. I have defended many
dissidents; maybe some people are not very happy about it.I can imagine that at a certain point, the
authorities just don't register you anymore.[223]

After Li lost the ability to practice, he explained that the
Shandong Judicial Bureau's refusal to provide him with a written explanation
for refusing to extend his license made it impossible for him to appeal the
decision.

I don't believe I can appeal to higher level because they
did not provide a written justification for the refusal of my application. Mine
is not a situation where one receives a penalty according to laws and
regulations because of a particular transgression-instead, the judicial bureau
doesn't give you any reason, they just don't issue you the registration
license! There is no process, and this contravenes the rules governing the
administration of lawyers.[224]

Neither the Shandong Lawyers Association nor the All-China
Lawyers Association volunteered to take Li's case to the judicial authorities.

Indirect denial of registration: Pressures on law firms

In addition to directly denying
re-registration, in some cases the authorities have exerted pressure on local bar
associations not to register a lawyer, or on law firms to dismiss or
disassociate from a lawyer, to ensure that the lawyer in question cannot
fulfill the conditions for re-registration of his or her license to practice.

Lawyer Zhang Jiankang, who had represented farmers in a high
profile land dispute in Nanhai,
Guangdong Province, was denied
re-registration in March 2007.[225]Under pressure from the Shaanxi Judicial
Bureau, Zhang's law firm declined to endorse his membership application to the
local lawyers association, effectively depriving him of his lawyer's license.[226]
According to Zhang, the Xi'an Judicial Bureau threatened to close the Diyi law
firm if it supported Zhang's membership.

Zhang had been warned earlier by the judicial authorities to
stop getting involved in controversial cases. In May 2006, he was denied
permission to travel to the United
States for a conference. Zhang provided the
following account of his exchange with an officer at the Public Security Bureau
who had authority over the issuance of passports:

Official: "You can not apply for a passport. The Jiangxi
Province State Protection Bureau has a case on you, your acts have violated
State security."

Zhang: "Can you be more concrete?"

Official: "I cannot be more precise. This is not my
responsibility to inform you of the circumstances. You can take it up with the
Jiangxi State Protection Bureau; if they drop your case, you can get a
passport."[227]

Officers from the State Protection Bureau warned him that he
should abandon all controversial cases such as the land dispute in Nanhai, stop
giving interviews to the media and stop writing articles critical of the
government posted on overseas websites.[228]

Despite these warnings Zhang did not cease his activities,
and argued in articles posted on overseas websites that the interference from
the judicial authorities was illegitimate.[229] In
October 2006, Zhang wrote:

Not to accept interviews, not to say a word, this is like
being a dead person. I don't care where request for interviews come from, I
have the right to be interviewed.[230]

Zhang also continued his involvement in the Nanhai case. In
January 2007, he was informed by his law firm that they would not register him
at the local bar. According to Zhang, his firm was sympathetic but felt they
could not risk alienating the judicial authorities: "You are within your rights,
but we don't have a choice. If you file a complaint, we will cooperate."[231]

Zhang's law firm subsequently tried to negotiate with the
provincial judicial authorities that he be allowed to finish ongoing cases that
he had been handling. In April 2006, the firm made a written demand to the
Xi'an Judicial Bureau to ask permission for Zhang to travel to neighboring Jiangsu province to
defend a criminal case he had started to work on a few months before, in June
2006. The bureau responded by calling the law firm two days later, stating that
Zhang was not authorized to handle any case, old or new, and that he was to
cease immediately handling cases with which he had been entrusted previously.[232]
Zhang later decided to travel to Jiangsu
nevertheless, but was unable to represent his client.[233]

In April 2007, seven protesters from the Nanhai land dispute
were given sentences ranging from two-and-a-half to four years' imprisonment on
charges of extortion and blackmail. Only one of them was represented by a
lawyer at the trial. The verdicts were upheld by the intermediate court in
October 2007.

Politically-motivated disbarment and sanctions against lawyers

The formal suspension of professional licenses is rarer but
has nevertheless been used in the case of particularly outspoken lawyers handling
contentious human rights cases and political dissidents. Prominent examples
include Gao Zhisheng, who was suspended in December 2006, Guo Guoting, who was suspended
in March 2005, and Zheng Enchong, who was disbarred in 2001.[234]

Aside from the requirement to re-register yearly, the Law on
Lawyers sets forth a number of specific irregularities for which the judicial
bureau can impose a temporary suspension ranging from three months to one year.
Many of the proscribed actions are non-controversial-such as the prohibition
against engaging in corrupt practices with court personnel-but the law can also
be easily manipulated, given the inclusion of clauses against "inciting and
instigating the adoption by plaintiffs of illegal means such as creating public
disturbances and harming public order to solve disputes" (Article 39-7), which deters
lawyers from representing many protesters, and the exclusion from immunity of "speech
that threatens national security" (Article 37) made by lawyers in court.[235]

The Ministry of Justice's own regulations, the "Methods
regarding the punishment of illegal acts by lawyers and law firms," expanded
greatly on the provisions ofthe Law on
Lawyers before its revision in October 2007,[236] and
includesa number of vaguely defined
clauses that could easily be abused for politically-motivated disbarment or
suspension. Those include "using media and publicity or other means to carry
out untrue or unsuitable publicity" (Article 9-11); "other acts for which a
penalty is appropriate" (Article 9-23); and "other illegal acts, that seriously
damage the image of the legal profession" (Article 10-3).[237]

Article 9 of the same regulations allows for law firms to be
temporarily suspended for three months to a year if they fail to promptly register
"changes regarding the name, charter, responsible persons, partners, address
and partnership agreement." This last clause was used by the Beijing
Municipality Judicial Bureau to justify the suspension of Gao Zhisheng's law
firm, the Shengzhi law firm, before his subsequent arrest and sentencing under
subversion charges.

Gao Zhisheng

On October 18, 2006, Gao issued an open letter addressed to China's
top leaders, Hu Jintao and Wen Jiabao, denouncing the widespread use of torture
against Falun Gong practitioners.

Six days after, as he was working on a case in the distant province of Xinjiang, Gao received a call from the
vice-head of the Beijing Judicial Bureau. The official asked him to withdraw
his letter or face unspecified consequences. "If you don't take it back, I
don't need to say what this implies…," Gao reported having been told.

On November 3, upon his return to Beijing, Gao was summoned to the judicial
bureau for a "group discussion" during which he was asked to drop all sensitive
cases and to stop talking to foreign media. The next day, a judicial bureau
investigation team went to the Shenzhi law firm, taking records and
interrogating Gao's personal assistant.

On November 4, the Beijing Judicial Bureau told Gao that his
law firm was being suspended for a year "following the results of the
investigation." The two reasons for the temporary suspension, effective 15 days
later, were a "failure to register in time the change of address of the law
firm" and "violat[ing] the professional ethics of the legal profession."[238]

Gao said that the suspension was retaliation for his letter
and his refusal to drop the sensitive cases. He also disputed the veracity of
both charges, saying that his staff had actually tried repeatedly to register
the change of address of the practice, but that the Judicial Bureau would not
process the registration, nor acknowledge its refusal to process it.

Gao also disputed the basis of the charge of having violated
professional ethics, which stemmed from the fact that a legal document
submitted by his firm bore the signature of the lawyer of another practice,
Tang Jingling. The document was a petition to visit the rights activist Guo
Feixiong, who was at the time in police custody in Guangzhou.[239]

A few weeks later, the Beijing Judicial Bureau revoked Gao's
personal law license, and he was instructed to turn it over or have it
confiscated by force.[240]
The director of the Lawyers and Notaries department of the Beijing Judicial Bureau
confirmed toAssociated Press that
Gao's license had been revoked, but refused to give further details, stating
only that the decisions had been made "some time ago."[241]

Li Heping, one of the lawyers who had banded together to
defend Gao, reviewed the bureau's notification and said that the cancellation
violated the law. Gao stated at the time that he would appeal the decision but
he was arrested a few weeks later.

Guo Guoting

Guo Guoting, director of the Tianyi law firm in Shanghai, had practiced maritime
law for almost twenty years. A guest professor at the law institute of Wuhan
University, he had published numerous books and articles on commercial and
maritime law, and was a member of the National Arbitration Committee on
Maritime Affairs.

In 2003, he decided to help a former classmate, Zeng
Enchong, a former lawyer who was fighting a legal battle on the behalf of
forcibly evicted residents in Shanghai.
Zeng had been disbarred in 2001 after he leveled accusations of collusion
between developers and the Shanghai
municipality. Despite his disbarment, he continued to work on behalf of residents,
filing multiple lawsuits. He was arrested in June 2003 and charged with a state
secrets offense for passing an article from an internal publication of Xinhua news agency to an overseas human
rights organization.

Almost immediately after Zeng's arrest, Guo started to
receive warnings from the Shanghai
judicial authorities telling him to drop Zeng's case. "The authorities called
me in 18 times to tell me to abandon this case," he told the New York Times at the time.[242]
"'It's not a legal matter, it's a political matter,' they'd say. Finally, a
midlevel cadre warned me, 'If you pursue this case any further, whatever comes
of it will be entirely your own responsibility.'"[243]

Guo refused to yield to these pressures, and continued to
defend Zeng and othersarrested for
posting articles online. Shi Tao was accused of "illegally providing state
secrets abroad" for posting the content of a circular from the Propaganda Department
related to the June 4th anniversary of the 1989 Tian'anmen crackdown.
He had been arrested in November 2004 and his trial was scheduled for March
2005. Zhang Lin, a dissident writer, had been imprisoned since January 2005 for
articles he posted on overseas web sites related to the Falun Gong movement and
calling for political reform. Zhang faced state security charges, with a trial
due in August 2005. Huang Jinqiu, an internet essayist, had been arrested in
September 2003 and sentenced in September 2004 to 12-year imprisonment for
subversion and writing "reactionary articles."[244]

Guo had mounted vigorous challenges on all three cases, both
on procedural and freedom of expression grounds, and faced growing pressure
from the Shanghai
government to drop these controversial cases. On February 22, 2005, he was
barred from a scheduled visit to Zhang Lin. The next day, over a dozen
officials from the Shanghai Judicial Bureau raided Guo's firm. They confiscated
his license, having pretended that they needed to copy his license number, and
took away his computer. On March 1, the Shanghai Judicial Bureau issued Guo a
one-year suspension. Guo stated that it was an "unjustified official
punishment" and announced his intention to challenge the suspension at the
hearing on March 4.

To prevent Guo's supporters from attending the hearing, the
Shanghai Judicial Bureau changed the place of the hearing at the last minute to
another location. Police then prevented fellow lawyers from entering the hearing
chamber by claiming that it was already "full."

According to Guo's lawyer, Wei Rujiu, the hearing was perfunctory.
The judicial authorities accused Guo of having written articles that "slandered
the Communist Party" and "violated the four cardinal principles" of the
Constitution.[245]Representatives from the Shanghai Judicial
Bureau submitted Guo's information, including Guo's defense statement, articles
he had written, and media interviews he had given.[246] "Guo admitted to being the author of the
articles, but did not admit that the content was attacking the Party and
socialism," Wei subsequently told overseas media.[247]

Immediately after the hearing the police put Guo under house
arrest. Uniformed and plainclothes police monitored him around the clock,
confiscated his mobile phone, wiretapped his home phone and prohibited him from
talking to the media.[248]
Guo was prevented from attending the trial of Shi Tao, for whom he had been the
main defense lawyer.

In late May 2005, the Shanghai
authorities allowed Guo Guoting to leave to Canada, where he now lives in
exile. His clients were all convicted and sentenced. Shi Tao was secretly tried
by the Changsha Intermediate Court
on May 11 and sentenced to 10 years' imprisonment to be followed by a two-year
deprivation of political rights for the crime of "illegally providing state
secret overseas." Zhang Lin was sentenced to five years in prison in July
2005 on charges of "harming national security." Huang Jinqiu was denied appeal
and is serving his 12-year term in Pukou Prison, near Nanjing.

Although the law specifies that lawyers subjected to a
suspension or withdrawal of license can technically challenge the decision by
"applying for administrative reconsideration" or "bringing an administrative
lawsuit," such a challenge does not suspend the sanction and in practice is
ineffective given the judicial authorities' tight control over the courts.

Human Rights Watch
is not aware of any instances in which a lawyer has successfully challenged a
suspension or withdrawal penalty through the courts.

Statistics about the yearly number of suspensions and
disbarments are not readily available. Local judicial bureaus occasionally publish
reports that give details about the number of lawyers they have sanctioned over
the past year or during one of the recurrent "rectification" campaigns, among
which suspensions or withdrawal of licenses are featured, but the data is not
comprehensive. Nationwide figures are unavailable or unreliable.[249]

Some estimate that 100-200 lawyers are suspended every year
in China;
others believe the figure is higher. Given the widely acknowledged problems of
fraud and corruption that plague the legal profession, it is likely that many
such sanctions are legitimate, the consequence of actual infractions committed
by lawyers or law firms.[250]

But there is also strong evidence, much of which is detailed
above, that the Chinese authorities use suspensions and denial of registration to
retaliate against or prevent lawyers from exposing cases that may cause
embarrassment to the authorities, such as embezzlement, corruption, abuses of
power, and human rights violations committed by state and Party officials. The
suspension and disbarment of a number of outspoken lawyers for their defense of
victims of human rights abuses deters most lawyers from engaging in such cases.
The net result is that it is much more difficult for ordinary Chinese citizens
to seek justice through the courts-contrary to the government's insistence that
it upholds the rule of law.

X. Recommendations

To the Chinese
government

a. Release and reinstate lawyers illegitimately
sanctioned

·Immediately release all lawyers arrested,
detained, or under house arrest as a result of their legitimate professional
activities on behalf of controversial clients or causes.

·Reinstate the professional licenses of lawyers
who have been suspended or whose registration has been denied for political
reasons.

b. Improve access to justice and sanction official
arbitrariness

·Repeal local or administrative rules and
regulations and prohibit the enactment of new rules and regulations that impose
additional limitations on the rights of lawyers beyond those defined in
national law or regulations.

·Ensure access to justice for victims of abuses
of power by upholding existing laws and prosecuting officials who obstruct the
course of justice.

·Remove obstructions-including embedded Party and
administrative interference-that prevent lawyers from effectively and
vigorously representing criminal defendants and other clients in contentious
cases, including those alleging official abuse.

·Provide for more effective and automatic administrative
sanctions for judicial officials who arbitrarily deny attorneys' registration
and Public Security Bureau officials who block access to justice.

c. Grant the legal profession independence

·Ensure that bar associations are fully
independent and self-governing so that they can adequately represent the
interests of the legal profession and actively defend lawyers facing
illegitimate official sanctions. Abolish statutes stipulating that judicial
bureaus exercise "supervision and guidance" of bar associations.

·Allow for free elections of the executive bodies
of bar associations at the local and national level and ensure that they
exercise their functions without external interference.

·Remove all restrictions preventing lawyers from
talking to the media, consistent with China's constitutional free
expression guarantee, with only narrowly tailored exceptions necessary to
protect the integrity of judicial processes.

·Ensure that arbitrary restrictions are not
placed on the press in the coverage of cases, including restrictions stemming
from political considerations or aimed at preventing official embarrassment.

d. Revise key laws and regulations

Annual renewal of registration of professional
licenses

·Revise the Ministry of Justice's "Methods for the
Management of Lawyers Professional Licenses [律师执业证管理办法]" and similar local regulations to ensure that lawyers'
annual registration is not subject to political considerations or other
arbitrary factors. No lawyer should be denied renewal of registration on the
basis of the cases he has represented or is representing. If registration is
denied, the grounds on which the decision was made should be communicated in
writing, and the decision subject to appeal to an independent appellate body.

Restrictions on collective cases

·Repeal the "Guiding Opinions on Lawyers Handling
Mass Cases [中华全国律师协会关于律师办理群体性案件指导意见]"
and similar local regulations that interfere with the ability of lawyers to
represent the interests of their clients in collective cases. There should be
no limitation on the type and nature of cases lawyers are entitled to represent,
nor on the number of plaintiffs involved. Lawyers who accept collective cases
should not be forced to seek instructions or permission from the Ministry of
Justice.

Revisions to the Criminal Procedure Law

·Repeal article 306 of the Criminal Procedure Law
that allows for the prosecution of lawyers who counsel clients to retract
inaccurate depositions or forced confessions.

·To improve lawyers' access to criminal suspects
in custody, bring article 96 of the Criminal Procedure Law into agreement with
provisions of the revisedLaw on
Lawyers before the latter goes into
effect on June 1, 2008. In particular, repeal the provisions stating that a
meeting request can be denied for "cases involving state secrets" and that
"personnel from the investigating organ… [may] be present" during the meeting
between a lawyer and his client.

·Ensure that revisions to theCriminal Procedure Law are consistent with international standards
for the administration of justice and the protection of criminal defendants'
human rights. Such revisions should be made through a transparent and
consultative process, with a public timetable of hearings and sessions, and
sufficient time for a proper debate in the legislative assembly. A strong basis
for the necessary revisions can be found in:

Tian Wenchang, Chen Ruihua, eds., Draft Recommendations and Considerations by
the Legal Profession on the Revisions to the Criminal Procedure Law of the PRC
(Beijing: Law Press China, 2007). [田文昌、陈瑞华(主编),中华人民共和国刑事诉讼法在修改－律师建议稿于论证, (北京:法律出版社,2007).]

Bian Jianlin, ed., The Quest for China's Criminal
Justice Reform - Taking for Reference the Norms of the United Nation on
Criminal Justice (Bejing: Chinese People's Public Security University
Press, 2007). [卞建林(著编),中国刑事司法改革探索-以联合国刑事司法准则为参照(北京:中国人民公安大学出版社, 2007).]

·Revise provisions of the Criminal Procedure Law
to ensure that lawyers get access to all evidence as soon as it is sent to
court, and that they are given adequate time to examine, investigate, and
prepare evidence and witnesses before court proceedings commence.

·Revise theCriminal Procedure Law to exclude evidence obtained from torture so as to
enforce the prohibition of torture and forced confessions.

e. Ensure effective protection of lawyers

·Ensure the effective protection of lawyers
carrying out their functions, in part by reiterating China's
commitment to the Basic Principles on the Role of Lawyers, to which China is a
signatory, particularly:

Principle 16

Governments shall ensure that lawyers (a) are able to
perform all of their professional functions without intimidation, hindrance,
harassment or improper interference; (b) are able to travel and to consult with
their clients freely both within their own country and abroad; and (c) shall
not suffer, or be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.

Principle 23

Lawyers like other citizens are entitled to freedom of
expression, belief, association and assembly. In particular, they shall have
the right to take part in public discussion of matters concerning the law, the
administration of justice and the promotion and protection of human rights and
to join or form local, national or international organizations and attend their
meetings, without suffering professional restrictions by reason of their lawful
action or their membership in a lawful organization. In exercising these
rights, lawyers shall always conduct themselves in accordance with the law and
the recognized standards and ethics of the legal profession.

Lawyers shall be entitled to form and join self-governing
professional associations to represent their interests, promote their
continuing education and training and protect their professional integrity. The
executive body of the professional associations shall be elected by its members
and shall exercise its functions without external interference.

f. Invite the United Nations special rapporteur on the independence of lawyers
and judges

·Issue an unconditional invitation to the United
Nations special rapporteur on the independence of lawyers and judges to visit
China, and allow the rapporteur full access in compliance with the terms of
reference for United Nations rapporteurs.

To members of the international law community

Including governments and international
organizations funding legal aid programs, law schools running legal cooperation
initiatives and international law firms with a presence in China

Human Rights Watch believes that international legal
exchange and support programs that focus on legal practitioners are making a
positive contribution to legal reform in China. Such programs should be
strengthened and greater resources should focus on protection for the legal
profession and access to justice.

To support lifting the restrictions on lawyers identified in
this report that unnecessarily held in check the internal dynamic of legal
reform, the international law community should:

a. Ensure effective protection of its local partners

·Privately and publicly express concern when the
Chinese partners with whom they work face abuse or interference.

·Press central government authorities to ensure
that national laws protecting the practice of law, including lawyers' vigorous
defense of controversial clients and causes, are applied locally.

·Regularly convey concerns shared by Chinese
legal aid institutions to the Chinese authorities, in particular when legal
activists are at risk.

b. Focus on practices rather than exclusively on norms

·Identify modest adjustments to existing routines
and institutions that can substantially improve the ability of lawyers to
exercise their rights and lower human rights abuses.

c. Promote judicial independence as the cornerstone of legal reform

·Emphasize to Chinese officials the importance of
an independent legal sector in resolving public disputes and mediating social
unrest.

·Promote the independence of judges, lawyers, and
legal professionals.

·Offer assistance on how to structure an
independent lawyers association and provide comparative expertise on how other
countries manage relationships between judicial branches and lawyers.

d. Promote public interest law

·Promote the development of pro bono law practice.

·Support legal aid to underrepresented groups in
the legal process.

·Open grant-making programs to the public so as
to generate a more diversified pool of domestic partners across the
country.

·Ensure a balance between academic, official, and
non-governmental partners in legal aid programs.

e. Ensure greater coordination in legal assistance to China

·Ensure greater coordination between legal aid
programs.

·Ensure a balance between academic, official, and
non-governmental partners in legal aid programs.

f. Provide balanced assessments of the performance of China's legal system based on international
standards

·Include in periodic activity reports from legal
aid programs comprehensive updates on the performance of China's legal
system, including the extent to which it is making progress in meeting
international standards for the administration of justice.

To foreign governments and the United Nations

·Press the Chinese government to invite the UN special
rapporteur on the independence of lawyers and judges to visit.

·Press the Chinese government to report on the
implementation of the recommendations made by the special rapporteur on torture
after his visit to China.

·Press the Chinese government to ratify as soon
as possible the International Covenant on Civil and Political Rights (ICCPR),
which recognizes the right to counsel, the principle of equality before the
courts, and the right to a fair and public hearing by an independent court
established by law.

XI.
Acknowledgments

This
report was edited by Sophie Richardson,
advocacy director for the Asia Division; Brad Adams,
executive director for the Asia Division of Human
Rights Watch; and Joseph Saunders,
deputy director of the Program department. Dinah
PoKempner, general counsel for Human Rights Watch, provided
legal review.

Andrea
Cottom, associate for the Asia Division, provided administrative and

technical
assistance. Production assistance was provided by Grace Choi and Fitzroy
Hepkins.

Human Rights Watch is especially grateful to Professor
Fu Hualing and Jeffrey Prescott for reviewing an earlier version of this
report, as well as to the many Chinese legal professionals who volunteered
their comments but preferred to remain anonymous.

Human
Rights Watch wishes to thank several donors for their support including David
A. Jones, Jr., Mary and Michael E. Gellert, as well as a very generous
anonymous donor.

Appendix I: Glossary of
Chinese Terms

Chinese pinyin

Chinese characters

English

Bei
xingzheng jinggao

被行政警告

Issued administrative warnings

Bei
zanhuan zhuce

被暂缓注册

Temporarily de-registered

Chi beigao

吃被告

Taking bribes from the defendant

Chi huikou

吃回扣

Receiving kick-back

Chi yuangao

吃原告

Taking bribes from the plaintiff

Ding
xing

定性

Make a determination on the (political)
nature of a situation

Diaoxiao

吊销

License withdrawn

Falü xiaoguo he shehui xiaoguo xiang
tongyi

法律效果与社会效果相统一

Unification of
legal and social outcomes

Fayuan

法院

The courts

Fei falü de shouduan

非法律的手段

Non-legal
methods

Fei
susong

非诉讼

Non-litigious

Gao youchang fuwu

搞有偿服务

Demanding commission for making
beneficial judgment

Gong'an

公安

Police

Gong
quanli

公权力

Public power

Gongjianfa

公检法

Judicial organs (police, Procuracy,
and courts)

Guquan
daju

顾全大局

Take the big
picture into consideration

Hei yusan

黑雨伞

"Black
umbrellas" (collusion between officials and organized crime)

Heishehui

黑社会

Secret
societies

Heyiting

合议庭

Collegiate panel system

Jianchayuan

检察院

Public
prosecution/procuratorial work

Jianshi juzhu

监视居住

Supervised residence

Jiti
shangfang

集体上访

Collective petitioning

Jitixing
anjian

集体性案件

Collective case

Jubao houshen

取保候审

Bail

Juchuan

拘传

Summon for
detention

Lan zhixing

滥执行

Abusing
the adjudication powers

Liang ge jiehe

两个结合

Joint administration system (for the
management of lawyers)

Mai zhengju

卖证据

Selling evidence of the court case

Pishi

批示

(Internal)
written instructions

Quntixing
anjian

群体性案件

Mass case

Renwei queyou biyao de

认为确有必要的

"If [the court]
believes it is indeed necessary"

San
(lao/da) nan

三(老/大)难

The "Three difficulties"

San lu hu

拦路虎

Obstacle
(litt.: a tiger blocking the road)

Shangfang

上访

To petition or appeal to higher
levels (colloq.)

Shehuizhuyi
fazhi li'nian jiaoyu

社会主义法治理念教育

"Education in the concept of
socialist rule of law"

Shen er bu pan, pan er bu shen

审而不判,
判而不审

"[The judges] who
conduct the trial are not the ones adjudicating it, and those adjudicating
the trial are not the ones conducting it"

Cabestan, Jean-Pierre. "The Political and Practical
Obstacles to the Reform of the Judiciary and the Establishment of a Rule of Law
in China,"
Journal of Chinese Political Science,
vol. 10, no. 1, April 2005.

Chen Guangcheng, "Violence in Enforcing Family Planning in a
Chinese Region," The Network of Chinese
Human Rights Defenders (CRD) on June 11, 2005, http://crd-net.org/Article/Class9/Class11/200506/20050611195219_427.html
(accessed June 15, 2005).

Cheng Hai, and Gao Fengquan, Zhang Lihui, Ou-Yang Zhigang,
Li Heping, Li Qingsong, Meng Xianming, et al. "Strongly Requesting the
Protection of the Security of the Legal Profession According to Law, and the
Amelioration of the Working Conditions of the Legal Profession," Letter to the
central government, dated December 29, 2006 ["强烈要求依法保护律师执业安全, 改善律师执业环境," 2006-12-29], http://crd-net.org/Article/ShowArticle.asp?ArticleID=3017
(accessed May 15, 2007).

Henderson, Keith. "The rule of law and judicial corruption
in China:
half-way over the Great Wall," in
Transparency International, Global Corruption Report 2007: Corruption and
Judicial Systems (Cambridge University Press, April 2007), pp. 151-159.

Fu Hualing. "When Lawyers are Prosecuted: The Struggle of a
Profession in Transition," Social Science
Research Network (http://www.ssrn.com/),
May 2007,

Looking at the difficulties in building a harmonious society
from the perspective of the Letters and Visit work, CentralPartySchool, March 29, 2007 ["从信访工作中的问题看和谐社会建设难点重点,"
中央党校进修一班第40期A班社会发展方向第三课题组, 2007-03-29].

---. "The Practice of
Law as an Obstacle to Justice: Chinese Lawyers at Work," Law & Society Review, vol. 40 Issue 1 (2006).

PRC Ministry of Public Security Press Communique, "Ministry of Public Security Report on the
Trend and Situation of Social Order for the first half of 2007," August 14,
2007 ["公安部举行新闻发布会通报2007年上半年社会治安形势有关情况," 2007-08-14].

PRC Ministry of Public Security Press Conference, "Press
Release: Ministry of Public Security Report on the Trend of Social Order and
Disaster in 2005," January 20, 2006 ["公安部召开新闻发布会通报2005年全国社会治安形势暨火灾形势," 2006-01-20].

"The Status of Lawyers and the Revision of the Law on
Lawyers," Lawyer Digest, Issue 4,
2007, pp. 13-19. ["律师地位与律师法修改,"
律师文摘,2007,第4辑,
13-19页].

The Third Dongfang Forum on Public Interest Litigation, Localization of Public interest Litigation
in China, vol. II 130, Institute of Law, Chinese Academy of Social
Sciences, August 25, 2006. [中国社会科学法院学研究所,
第三届东方公益诉讼论坛,
公益诉讼的本土,
2006年8月中国北京.]

Tian Wenchang, and Chen Ruihua, eds. Draft Recommendations and Considerations by the Legal Profession on the
Revisions to the Criminal Procedure Law of the PRC, (Beijing:
Law Press China,
2007). [田文昌、陈瑞华(主编),中华人民共和国刑事诉讼法在修改－律师建议稿于论证,
(北京:法律出版社, 2007).]

Zan Aizong, and Wang Yi, Wen Kejian, Xu Xiang, Wu Yisan,
Zeng Fu, Mo Daoqian: Citizen Proposal to the National People's Congress for the
Investigation of the issue of the legality of the 'Twin Regulations' of the
Ruling Party, May 3, 2007. [昝爱宗、王怡、温克坚、徐祥、武宜三、曾夫、莫道前:
关于要求全国人大会议对执政党"双规"合法性问题进行审查的公民建议信, 2007-03-05.]

Laws and regulations

Constitution of the People's Republic of China, December 4, 1982 (last revised March 2004).

Criminal law of the People's Republic of China, March 1997 (last revised
June 26, 2006).

Criminal procedure law of the People's Republic of China,
March 1996.

Law on lawyers of the People's Republic of China, Standing
Committee of the National People's Congress, adopted May 15, 1996(last revised October 28, 2007, effective
June 1st, 2008) [全国人民代表大会常务委员会:
中华人民共和国律师法,
(2007年10月28修订后)
2008年6月1日起施行].

"Notice on Earnestly Implementing the Law on Lawyers,
Supreme People's Court of the People's Republic of China," March 13, 2006 [ 中华人民共和国最高人民法院:
关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知,
2006-9-27 ].

"Decision of the Central Party Authorities Regarding the
Strengthening of the Work of the Courts and Procuratorates," www.chinacourt.org,["中共中央关于进一步加强人民法院、人民检察院工作的决定",
人民法院报,
2006-6-30].

"Regulations on a number of issues concerning the
implementation of the criminal procedure law, Jointly issued by the Supreme
People's Court, Public Security Ministry, State Security Ministry, Justice
Ministry, National People's Congress Standing Legal Work Committee," January
19, 1998. [最高人民法院最高人民检察院,
公安部, 国家安全部,
司法部, 全国人大常委会法制工作委员会:
关于刑事诉讼法实施中若干问题的规定,
1998-01-09].

"Methods for the management of lawyer's professional
licenses," Ministry of Justice, Order No 46, November 25, 1996. [律师执业证管理办法, 1996-11-25, 司法部令第46号发布.]

Speeches

Hu Jintao. "Hold High the Great Banner of Socialism With
Chinese Characteristics and Strive for New Victories in Building a Moderately
Prosperous Society in All Respects: Report to the Seventeenth National Congress
of the Communist Party of China," October 15, 2007 ["高举中国特色社会主义伟大旗帜 为夺取全面建设小康社会新胜利而奋斗━在中国共产党第十七次全国代表大会上的报告胡锦涛在中国共产党第十七次全国代表大会上的报告," 2007-10-15.]

Luo Gan. "Bolstering the Teaching of the Concept of
Socialist Rule of Law: Conscientiously Strengthening the Political Thinking of
the Political and Legal Ranks," Seeking
Truth, Issue No. 433, June 16, 2006 [罗干,
"深入开展社会主义法治理念教育切实加强政法队伍思想政治建设," 求是, 2006-06
-16 (总433 期)].

---. "The Political and Legal Organs Shoulder an Important
Historical Mission and a Political Duty during the Construction of a Harmonious
Society," Seeking Truth, Issue 448,
February 1, 2007 [罗干,
"政法机关在构建和谐社会中担负重大历史使命和政治责任," 求是, 2007-02-01 (总448期)].

Wen Jiabao. Report on the Work of the
Government delivered by Premier Wen Jiabao at the Fifth Session of the Tenth
National People's Congress on March 5, 2007.

Wu Guanzheng. "Expand the Field of Preventing and Tackling
Corruption at Its Source and Thoroughly Push Forward the Improvement of the
Party's Work Style, the Building of a Clean Government, and the Struggle
Against Corruption - Work Report by Comrade Wu Guanzheng at the Seventh plenary
session of the CCP Central Commission for Discipline Inspection," Xinhua News Agency, February 14, 2007.

Appendix IV: Law
on Lawyers of the People's Republic of China

(Adopted at the 19th Session of the Standing Committee of
the Eighth National People's Congress on May 15, 1996; last revised at the 30th
Session of the Tenth National People's Congress on October 28, 2007; effective
as of June 1, 2008.)

Table of Contents

Chapter I General
Provisions

Chapter II Lawyer
Practice Licensing

Chapter III Law
Firms

Chapter IV Practices,
Rights and Obligations of Lawyers

Chapter V Lawyers
Association

Chapter VI Legal
Liability

Chapter VII Supplementary
Provisions

Chapter I: General Provisions

Article 1

This Law has been made to improve the lawyer system,
standardize the practicing conduct of lawyers, safeguard the legal practice of
law by lawyers, and discharge the functions of lawyers in the building of a
socialist legal system.

Article 2

A lawyer as mentioned in this Law shall refer to a
practitioner who has acquired a lawyer's practicing certificate according to
law and accepts authorization or appointment to provide legal services for a
client.

A lawyer shall maintain the legal rights and interests of a
client, maintain the correct enforcement of law, and maintain the social
fairness and justice.

Article 3

In practicing law, a lawyer must observe the Constitution
and laws and adhere to the professional ethics and practicing disciplines of
lawyers.

In practicing law, a lawyer must take fact as the basis and
take law as the yardstick.

In practicing law, a lawyer must accept the supervision of
the state, public and client.

The legal practice of a lawyer shall be protected by law,
and no organization or individual shall infringe upon the legal rights and
interests of a lawyer.

Article 4

The justice administrative authorities shall supervise and
provide guidance for lawyers, law firms and lawyers' associations in accordance
with this Law.

Chapter II Lawyer Practice Licensing

Article 5

To apply for practicing law, a person shall satisfy the
following conditions:

Upholding
the Constitution of the People's Republic of China;

Passing
the uniform national judicial examination;

Completing
one-year internship at a law firm; and

Having
good character and conduct.

In the application for practice of law, a certificate of
lawyer qualification acquired before the adoption of the uniform national
judicial examination shall be equally authentic with a certificate of passing
the uniform national judicial examination.

Article 6

To apply for practicing law, a person shall lodge an
application with the justice administrative authority of the people's
government of a city with districts or the people's government of a district of
a municipality directly under the Central Government, and submit the following
materials:

Certificate
of passing the uniform national judicial examination;

Document
issued by a lawyers' association on the applicant's passing the internship
assessment;

Identity
certificate of the applicant; and

Certificate
issued by a law firm on agreeing to accept the applicant.

To apply for practicing law on a part-time basis, a person
shall also submit a certificate that the work unit of the applicant allows the
applicant to practice law on a part-time basis.

The authority accepting the application shall examine the
application and submit its examination opinions and all application materials
to the justice administrative authority of a province, autonomous region or
municipality directly under the Central Government within 20 days as of the
date of acceptance. The justice administrative authority of a province,
autonomous region or municipality directly under the Central Government shall
review the submissions and make a decision on approving or disapproving the
practice of law within ten days as of receiving the submissions. If the
practice of law is approved, a lawyer's practicing certificate shall be issued
to the applicant; if the practice of law is disapproved, the reasons shall be
explained in writing to the applicant.

Article 7

A lawyer's practicing certificate shall not be issued to an
applicant who is under any of the following circumstances:

Having
no capacity or limited capacity in civil conduct;

Having
a record of criminal punishment, except for a crime of negligence; or

Having
been expelled from a public office or having his lawyer's practicing
certificate revoked.

Article 8

Where a person, who has received regular course education or
above in an institution of higher learning, has been engaged in the
professional work for at least 15 years in a field short of legal service staff
and has a senior professional title or an equivalent professional title,
applies for practicing law on a full-time basis, an approval of practice of law
may be granted if he passes the assessment of the justice administrative
authority under the State Council. The specific rules shall be made by the
State Council.

Article 9

Under either of the following circumstances, the justice administrative
authority of a province, autonomous region or municipality directly under the
Central Government shall revoke a decision on approving the practice of law,
and cancel the lawyer's practicing certificate of the person whose practice of
law is approved:

An
applicant has acquired a lawyer's practicing certificate by fraud, bribery
or any other illicit means; or

The
practice of law by an applicant who does not satisfy the conditions set
forth in this Law has been approved.

Article 10

A lawyer may only practice law in one law firm. Where a
lawyer changes his firm of practice, he shall apply for replacement of the
lawyer's practicing certificate.

The practice of law by a lawyer shall be free of territorial
restrictions.

Article 11

A civil servant shall not concurrently serve as a practicing
lawyer.

A lawyer, who serves as a member of a standing committee of
a people's congress at any level, shall not be engaged in a practice of
representation or defense in litigation during his term of membership.

Article 12

A person who is engaged in the legal education or research
work in an institution of higher learning or research institute may apply for
practicing law as a part-time lawyer, according to the procedures set forth in
Article 6 of this Law, with the consent of the work unit of the person, if the
conditions set forth in Article 5 of this Law are satisfied.

Article 13

A person who has not acquired a lawyer's practicing
certificate shall not be engaged in legal service practices in the name of lawyer;
and, except as otherwise provided for by law, shall not be engaged in a
practice of representation or defense in litigation.

Chapter III Law Firms

Article 14

A law firm is a firm where a lawyer practices law. To form a
law firm, the following conditions shall be satisfied:

It
shall have its own name, residence and articles of association;

It
shall have lawyers consistent with the provisions of this Law;

The
promoter shall be a lawyer with certain practicing experience and without
suffering a penalty of cessation of practicing within three years; and

It
shall have assets in the amount as provided for by the justice
administrative authority of the State Council.

Article 15

To form a partnership law firm, in addition to satisfying
the conditions set forth in Article 14 of this Law, there shall be three or
more partners, and a promoter shall be a lawyer with practicing experience for
three or more years.

A partnership law firm may be formed as a general
partnership or a limited liability partnership. The partners of a partnership
law firm shall be liable for the debts of the law firm in terms of the form of
partnership.

Article 16

To form a sole proprietorship law firm, in addition to
satisfying the conditions set forth in Article 14 of this Law, the promoter
shall be a lawyer with practicing experience for five or more years. The
promoter shall be unlimitedly liable for the debts of the law firm.

Article 17

To apply for forming a law firm, the following materials
shall be submitted:

The
written application;

The
name and articles of association of the law firm to be formed;

The
list and resumes, identity certificates and lawyer's practicing
certificates of lawyers;

Certificate
of residence; and

Certificate
of assets.

To form a partnership law firm, a partnership agreement
shall also be submitted.

Article 18

To form a law firm, an application shall be lodged with the
justice administrative authority of the people's government of a city with
districts or the people's government of a district of a municipality directly
under the Central Government, and the authority accepting the application shall
examine the application and submit its examination opinions and all application
materials to the justice administrative authority of a province, autonomous region
or municipality directly under the Central Government within 20 days as of the
date of acceptance. The justice administrative authority of a province,
autonomous region or municipality directly under the Central Government shall
review the submissions and make a decision on approving or disapproving the
formation of the law firm within ten days as of receiving the submissions. If
the formation of the law firm is approved, a law firm's practicing certificate
shall be issued to the applicant; if the formation of the law firm is
disapproved, the reasons shall be explained in writing to the applicant.

Article 19

A partnership law firm that has been formed for three years
and has 20 or more practicing lawyers may form a branch. The formation of a
branch shall be examined by the justice administrative authority of the
people's government of a province, autonomous region or municipality directly
under the Central Government of the location of the branch to be formed. The
procedures as provided for in Article 18 of this Law shall apply to an
application for the formation of a branch.

A partnership law firm shall be liable for the debts of its
branch.

Article 20

A law firm funded and formed by the state shall legally and
independently develop lawyer practices, and be liable for its debts with all
assets of the law firm.

Article 21

Any modification of the name, person in charge, articles of
association or partnership agreement of a law firm shall be reported to the
original examination and approval authority for approval.

Any modification of the residence or partners of a law firm
shall be reported to the original examination and approval authority for
archival purposes within 15 days as of the date of modification.

Article 22

A law firm under any of the following circumstances shall be
terminated:

The
statutory formation conditions cannot be maintained, and the law firm
remains to be unable to satisfy the conditions after making rectification
before a prescribed time limit;

The
law firm's practicing certificate has been revoked according to law;

The
law firm decides to wind up on its own; or

Any
other circumstance under which a law firm is to be terminated as provided
for by a law or administrative regulation.

Where a law firm is terminated, the authority issuing the
practicing certificate shall cancel the practicing certificate of the law firm.

Article 23

A law firm shall establish and enhance the practicing
management, examination on conflicts of interest, fee charge and financial
management, complaint investigation, annual assessment, archival management and
other systems, and supervise its lawyers' compliance with the professional
ethics and practicing disciplines in their practicing activities.

Article 24

A law firm shall submit its annual practicing information
report and lawyer practicing assessment results to the justice administrative
authority of the people's government of a city with districts or the people's
government of a district of a municipality directly under the Central
Government after the annual assessment each year.

Article 25

For a lawyer to undertake a practice, the law firm shall
uniformly accept a client's authorization and enter into a written
authorization agreement with a client, and uniformly charge fees and enter them
into accounts according to the provisions of the state.

A law firm and its lawyers shall pay taxes according to law.

Article 26

A law firm and its lawyers shall not develop practices by
defaming other law firms and lawyers, paying middleman fees and other illicit
means.

Article 27

A law firm shall not
be engaged in business operations other than legal services.

Chapter IV Practices, Rights and Obligations of Lawyers

Article 28

A lawyer may be engaged in the following practices:

Accepting
authorization by a citizen, legal person or any other organization to
serve as a legal consultant;

Accepting
authorization by a client in a civil or administrative case to serve as an
agent ad litem and participate in legal proceedings;

Accepting
authorization by a criminal suspect in a criminal case to provide him with
legal advice, represent him in filing a petition or charge, or apply for a
bail for awaiting trial for an arrested criminal suspect; accepting
authorization by a criminal suspect or defendant or accepting appointment
by a people's court to serve as a defender; and accepting authorization by
a private prosecutor in a case of private prosecution or by the victim or
his close relative in a case of public prosecution to serve as an agent ad
litem and participate in legal proceedings;

Accepting
authorization to represent a client in filing a petition in any
litigation;

Accepting
authorization to participate in mediation and arbitration activities;

Answering
questions on law and representing a client in writing litigation documents
and other documents on the relevant legal affairs.

Article 29

A lawyer serving as a legal consultant shall provide
opinions on relevant legal issues for a client as agreed upon, draft and
examine legal documents, represent a client in legal proceedings, mediation or
arbitration, handle other legal affairs as authorized, and protect the legal
rights and interests of the client.

Article 30

A lawyer serving as an agent in contentious and
non-contentious legal affairs shall protect the legal rights and interests of a
client within the extent of authorization.

Article 31

A lawyer serving as a defender shall present materials and
arguments proving that a criminal suspect is innocent or is less guilty than
charged or his criminal liability should be mitigated or relieved, on the basis
of fact and law, so as to protect the legal rights and interests of the
criminal suspect or defendant.

Article 32

A client may refuse to be further defended or represented by
an authorized lawyer, and may authorize another lawyer to defend or represent
him.

After accepting authorization, a lawyer shall not refuse to
defend or represent a client without good reasons. However, if the authorized
matter violates the law, the client makes use of the services provided by the
lawyer to engage in illegal activities or deliberately conceals a material fact
related to the case, the lawyer shall have right to refuse to defend or
represent the client.

Article 33

As of the date of first interrogation of or adoption of a
compulsory measure on a criminal suspect by the criminal investigative organ,
an authorized lawyer shall have right to meet the criminal suspect or defendant
and learn information related to the case, by presenting his lawyer's
practicing certificate, certificate of his law firm and power of attorney or
official legal aid papers. A lawyer who meets a criminal suspect or defendant
shall not be under surveillance.

Article 34

As of the date of prosecution examination of a case, an
authorized lawyer shall have the right to consult, extract and duplicate
litigation documents and case materials. As of the date of acceptance of a case
by the people's court, an authorized lawyer shall have the right to consult,
extract and duplicate all materials related to the case.

Article 35

As needed by a case, an authorized lawyer may apply to the
people's procuratorate or the people's court to gather, investigate and take
evidence or apply to the people's court for notifying a witness to testify in
court.

Where a lawyer investigates and takes evidence on his own,
he may investigate information related to the legal affairs handled from the
relevant entity or individual, by presenting his lawyer's practicing
certificate and certificate of his law firm.

Article 36

Where a lawyer serves as an agent ad litem or defender, his
right of debate or defense shall be protected by law.

Article 37

The personal rights of a lawyer in practicing law shall not
be infringed upon.

The representation or defense opinions presented in court by
a lawyer shall not be subject to legal prosecution, however, except speeches
compromising the national security, maliciously defaming others or seriously
disrupting the court order.

Where a lawyer is legally detained or arrested for any
suspected criminal involvement during participation in a legal proceeding, the
detention or arrest organ shall notify the relative, the law firm and the
lawyers' association of the lawyer within 24 hours after the adoption of
detention or arrest.

Article 38

A lawyer shall keep the national secrets and trade secrets
known in practicing law, and shall not divulge any privacy of a client.

A lawyer shall keep confidential the condition and
information that is known by the lawyer in practicing law and the client and
other persons are reluctant to disclose, however, except facts and information
on a crime compromising the national security or public security or seriously
endangering the safety of the body or property of a person, which a client or
other person prepares to commit or is committing.

Article 39

A lawyer shall not represent both parties in a same case,
and shall not represent a client in a legal affair that has any conflict of
interest with himself or his close relative.

Article 40

A lawyer shall not have any of the following conduct in
practicing law:

Accepting
authorization or charging fees privately, or accepting property or any
other benefit from a client;

Seeking
the disputed rights and interests of a party by taking advantage of the
provision of legal services;

Accepting
property or any other benefit from the opposite party, maliciously
colluding with the opposite party or a third party to damage the rights
and interests of his client;

Meeting
a judge, prosecutor, arbitrator or any other relevant staffer in violation
of provisions;

Bribing
or bribing as an intermediary a judge, prosecutor, arbitrator or any other
relevant staffer, instructing or inducing a party to bribe the same, or
affecting the handling of a case according to law by a judge, prosecutor,
arbitrator or any other relevant staffer by any other illicit means;

Instigating
or abetting a party to settle disputes by such illegal means as disrupting
the public order or compromising the public safety; or

Disrupting
the order of a court or arbitral tribunal, or interfering with the normal
conduct of litigation or arbitration.

Article 41

A lawyer who once served as a judge or prosecutor shall not
act as an agent ad litem or defender within two years after leaving his post in
the people's court or the people's procuratorate.

Article 42

Lawyers and law firms shall perform their obligations of
legal aid according to the state provisions, provide the aided persons with
standard legal services, and protect the legal rights and interests of the
aided persons.

Chapter V Lawyers' Association

Article 43

A lawyers' association is a social organization as legal
person and self-disciplinary organization of lawyers.

The All-China Lawyers' Association shall be formed at the
national level, while local lawyers' associations shall be formed by provinces,
autonomous regions, and municipalities directly under the Central Government.
Local lawyers' associations may be formed as needed by cities with districts.

Article 44

The Articles of Association of the All-China Lawyers'
Association shall be made by the National Congress of Members and submitted to
the justice administrative authority of the State Council for archival
purposes.

The articles of association of a local lawyers' association
shall be made by the local congress of members and submitted to the same-level
justice administrative authority for archival purposes. The articles of
association of a local lawyers' association shall not conflict with the
Articles of Association of the All-China Lawyers' Association.

Article 45

A lawyer or law firm shall join his or its local lawyers'
association. A lawyer or law firm that has joined his or its local lawyers'
association shall concurrently be a member of the All-China Lawyers'
Association.

The members of a lawyers' association shall enjoy the rights
as provided for by the articles of association of the lawyers' association, and
perform the obligations as provided for by the articles of association of the
lawyers' association.

Article 46

A lawyers' association shall perform the following
functions:

Safeguarding
the practice of law by lawyers, and protecting the legal rights and
interests of lawyers;

Summarizing
and exchanging the work experience of lawyers;

Making
a professional code and disciplinary rules;

Organizing
the lawyer practice training and the education on professional ethics and
practicing disciplines, and conducting the practicing assessment of
lawyers;

Organizing
and managing the internships of persons applying for the practice of law,
and conducting the assessment of interns;

Rewarding
or disciplining a lawyer or law firm;

Accepting
a complaint or report on a lawyer, mediating disputes arising out of the
practice of law by a lawyer, and accepting a petition by a lawyer; and

Other
functions as provided for by laws, administrative regulations and rules
and articles of association of a lawyers' association.

The professional code and disciplinary rules made by a
lawyers' association shall not conflict with the relevant laws and
administrative regulations and rules.

Chapter VI Legal Liability

Article 47

For any of the following conduct of a lawyer, the justice
administrative authority of the people's government of a city with districts or
the people's government of a district of a municipality directly under the
Central Government shall give a warning and may impose a fine of not more than
5,000 yuan; if there is any illegal income, shall confiscate the illegal
income; and if the circumstances are serious, shall impose a penalty of
cessation of practice for not more than three months:

Practicing
law in two or more law firms at the same time;

Developing
practices by illicit means;

Representing
both parties in a same case, or representing a client in a legal affair
that has any conflict of interest with himself or his close relative;

Serving
as an agent ad litem or defender within two years after leaving his post
in a people's court or the people's procuratorate; or

Refusing
to perform his legal aid obligation.

Article 48

For any of the following conduct of a lawyer, the justice
administrative authority of the people's government of a city with districts or
the people's government of a district of a municipality directly under the
Central Government shall give a warning and may impose a fine of not more than
10,000 yuan; if there is any illegal income, shall confiscate the illegal
income; and if the circumstances are serious, shall impose a penalty of
cessation of practice for not less than three months but not more than six
months:

Accepting
authorization or charging fees privately, or accepting property or any
other benefit from a client;

Refusing
to defend or represent a client, or failing to appear before court in
litigation or arbitration, without good reasons, after accepting
authorization;

Seeking
the disputed rights and interests of a party by taking advantage of the
provision of legal services; or

Divulging
a trade secret or personal privacy.

Article 49

For any of the following conduct of a lawyer, the justice
administrative authority of the people's government of a city with districts or
the people's government of a district of a municipality directly under the
Central Government shall impose a penalty of cessation of practice for not less
than six months but not more than one year and may impose a fine of not more than
50,000 yuan; and if there is any illegal income, shall confiscate the illegal
income; if the circumstances are serious, the justice administrative authority
of a province, autonomous region or municipality directly under the Central
Government shall revoke his lawyer's practicing certificate; and if a crime is
constituted, he shall be pursued for criminal liability:

Meeting
a judge, prosecutor, arbitrator or any other relevant staffer in violation
of provisions, or affecting the handling of a case according to law by a
judge, prosecutor, arbitrator or any other relevant staffer by any other
illicit means;

Bribing,
bribing as an intermediary or instigating or inducing a party to bribe a
judge, prosecutor, arbitrator or any other relevant staffer;

Providing
the justice administrative authority with false materials or making any
other falsehood;

Accepting
property or any other benefit from the opposite party, maliciously
colluding with the opposite party or a third party to infringe upon the
rights and interests of a client;

Disrupting
the order of a court or arbitral tribunal, or interfering with the normal
conduct of litigation or arbitration.

Instigating
a party to settle disputes by such illegal means as disrupting the public
order or compromising the public safety;

Delivering
a speech that compromising the national security, maliciously defaming
others or seriously disrupting the court order; or

Divulging
a national secret.

Where a criminal penalty is imposed on a lawyer for an
intentional crime, the justice administrative authority of a province,
autonomous region or municipality directly under the Central Government shall
revoke his lawyer's practicing certificate.

Article 50

For any of the following conduct of a law firm, the justice
administrative authority of the people's government of a city with districts or
the people's government of a district of a municipality directly under the
Central Government shall give a warning or impose a penalty of cessation of
practice for correction for not less than one month but not more than six
months and may impose a fine of not more than 100,000 yuan according to the
circumstances; and if there is any illegal income, shall confiscate the illegal
income; and if the circumstances are especially serious, the justice
administrative authority of a province, autonomous region or municipality
directly under the Central Government shall revoke the law firm's practicing
certificate:

Accepting
authorization or charging fees in violation of provisions;

Handling
such major matters as modification of its name, person in charge, articles
of association, residence and partners in violation of statutory
procedures;

Being
engaged in business operations other than legal services;

Developing
practices by defaming other law firms and lawyers, paying middleman fees
and other illicit means;

Accepting
cases with any conflict of interest in violation of provisions;

Refusing
to perform its legal aid obligation;

Providing
the justice administrative authority with false materials or making any
other falsehood; or

Causing
serous results for mismanagement of its lawyers.

Where a law firm is punished for any violation of law in the
preceding paragraph, a warning shall be given to or a fine of not more than
20,000 yuan shall be imposed on the person in charge of the law firm according
to the severity of circumstance.

Article 51

Where, for any violation of this Law, a lawyer is again
subject to a warning punishment within one year after being given a warning
punishment, the justice administrative authority of the people's government of
a city with districts or the people's government of a district of a
municipality directly under the Central Government shall impose a penalty of
cessation of practice for not less than three months but not more than one
year; where a lawyer is again subject to a penalty of cessation of practice
within two years after a period of penalty of cessation of practice expires,
the justice administrative authority of a province, autonomous region or
municipality directly under the Central Government shall revoke his lawyer's
practicing certificate.

Where, for any violation of this Law, a law firm is again
subject to a penalty of cessation of practice for correction within two years
after a period of penalty of cessation of practice for correction expires, the
justice administrative authority of a province, autonomous region or
municipality directly under the Central Government shall revoke the law firm's
practicing certificate.

Article 52

The justice administrative authority of the people's
government at the county level shall conduct the daily supervision and management
of the practice of law by lawyers and law firms, and order correction of the
problems found in the inspection; and shall timely investigate complaints by
the parties concerned. Deeming that an administrative punishment shall be
imposed against any legal violation committed by a lawyer or a law firm, the
justice administrative authority at the county level shall offer punishment
suggestions to its superior justice administrative authority.

Article 53

A lawyer on whom a penalty of cessation of practice for not
less than six months has been imposed shall not serve as a partner until three
years have passed after the period of penalty expires.

Article 54

Where a lawyer causes losses to a party for his illegal
practice of law or fault, his law firm shall assume the compensatory liability.
After compensation, the law firm may demand recourse from the lawyer who acts
intentionally or has gross negligence.

Article 55

Where a person without acquiring a lawyer's practicing
certificate engages in legal service practices in the name of lawyer, the
justice administrative authority of the local people's government at or above
the county level at his locality shall order cessation of the illegal practice,
confiscate illegal income, and impose a fine of not less than the amount but
not more than five times the amount of illegal income.

Article 56

Where a staffer of the justice administrative authority
abuses his powers or commits dereliction of duties in violation of this law,
and constitutes a crime, he shall be pursued for criminal liability; where a
crime is not constituted, a discipline shall be imposed on him according to
law.

Chapter VII Supplementary Provisions

Article 57

In respect of military lawyers who provide legal services to
the army, this law shall apply to their acquisition of the lawyer
qualification, rights and obligations and code of conduct. The specific
measures for the administration of military lawyers shall be made by the State
Council and the Central Military Commission.

Article 58

The specific measures for the administration of
establishment of offices by foreign law firms within the territory of the
People's Republic of China
to provide legal services shall be made by the State Council.

Article 59

The specific measures for charging lawyers' fees shall be
made by the competent price authority of the State Council in conjunction with
the justice administrative authority of the State Council.

[12]For example, the Suva Statement on the Principles of
Judicial Independence and Access to Justice (2004); Cairo Declaration on
Judicial Independence (2003); Bangalore Principles of Judicial Conduct (2002);
UN Basic Principles on the Role of Lawyers (1990); Beijing Basic Principles on
the Independence of the Judiciary (1985); International Bar Association's
Minimum Standards of Judicial Independence (1982); and UN Draft Principles on
the Independence of the Judiciary (1981).

[13]The vice-president of the Supreme People's Court was the
signatory for China.

[15]United Nations
Human Rights Committee (Twenty-first session, 1984): "International Covenant on
Civil and Political Rights General Comment No. 13: Equality before the courts
and the right to a fair and public hearing by an independent court established
by law (Art. 14)," April 13, 1984, paragraph 9.

[16]The Basic
Principles on the Role of Lawyers, adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, Havana,
Cuba, 27 August to 7 September 1990, "should be respected and taken into
account by Governments within the framework of their national legislation and
practice" (preamble). The Basic Principles is not a legally binding instrument.
However, they contain a series of principles and rights that are based on human
rights standards enshrined in other international instruments, such as the
ICCPR, which China
has signed but not ratified.

[22]United Nations
Human Rights Committee (Twenty-first session, 1984): "International Covenant on
Civil and Political Rights General Comment No. 13: Equality before the courts
and the right to a fair and public hearing by an independent court established
by law (Art. 14)," April 13, 1984, para. 9.

[24]"Supreme People's Court Notice Regarding the Earnest
Implementation of the Law on Lawyers and the Lawful Protection of the
Professional Rights and Interest of Lawyers in Legal Procedures," March 13,
2006 [最高人民法院关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知,
2006-03-13], http://www.bokee.net/company/weblog_viewEntry/899299.html
(accessed April 7, 2008).

[27]Lawyers-to-population
ratio is hardly comparable from one country to another because of the
specificities of each legal system. For illustration purposes the figure per
100,000 people is 1.2 for Japan,
1.3 for India, 4 for France, 15.4 for the United
Kingdom, and 32.7 for the United States. "China has a strong demand for
lawyers," China Economic Net(www.ce.cn), October 10, 2005, http://en.ce.cn/Insight/200510/11/t20051011_4902926.shtml
(accessed August 3, 2006).

[29]Article 4 of the
Law on Lawyers of the People's Republic of China states that "The judicial
administrative departments conduct supervision and guidance of lawyers, law
firms and bar associations according to the present law." Article 4 of the
Charter of the All-China Lawyers Association states that "Lawyers associations
receive the supervision and guidance of judicial administrative departments."
Standing Committee of the National People's Congress, Law on Lawyers of the
People's Republic of China, adopted May 15, 1996 (last revised October 28,
2007, effective June 1st, 2008) [全国人民代表大会常务委员会:《中华人民共和国律师法》(2007年10月28修订后)
2008年6月1日起施行], http://www.chinanews.com.cn/gn/news/2007/10-28/1061502.shtml
(accessed November 2, 2007);Charter of
the All-China Lawyer Association, April 4, 1999 [中华全国律师协会章程,
1999年4月28日],
http://law.chinalawinfo.com/newlaw2002/SLC/slc.asp?db=chl&gid=31669
(accessed November 2, 2007).

[33]The Ministry of Justice has carried out some
experimentation with bar associations electing themselves their president,
although the process remains under tight scrutiny. In one recent case in Southern China, the president elected in this way was the
former head of the local judicial bureau.

[34]This system is
referred to as the "joint administration system" (liang ge jiehe). See Ye Qing and Gu Yuejin, eds., Study of the Lawyers System in China (Shanghai:
ShanghaiAcademy of Social Sciences Press, 2005),
p. 98. [叶青, 顾跃进(主编),中国律师制度研究, (上海: 上海社会科学出版社, 2005), 第98页.]

[39]Luo Gan, "The
Political and Legal Organs Shoulder an Important Historical Mission and a
Political Duty during the Construction of a Harmonious Society," Seeking Truth, Issue 448, February 1,
2007 [罗干, "政法机关在构建和谐社会中担负重大历史使命和政治责任," 求是, 2007-02-01 (总448期)], http://www.qsjournal.com.cn/qs/20070201/GB/qs%5E448%5E0%5E1.htm
(accessed March 6, 2007). See also: Lindsay Beck, "China Urges Judiciary to Handle
Unrest Better," Reuters, February 2,
2007; Joseph Kahn, "Chinese Official Warns Against Independence of Courts," The New York Times, February 3, 2007.

[47]Beijing
waited until 10 days after the incident to tell the public about a factory
explosion that dumped 100 tons of benzene and other chemicals into northeastern
China's Songhua
river. "China's
PR problem," Los Angeles Times,
December 13, 2005.

[48]By contrast,
neither the President of the Supreme People's Court nor the President of the
Supreme People's Procuratorate are members of the Political Bureau.

[49]"Supreme People's
Court Notice Regarding the Earnest Implementation of the Law on Lawyers and the
Lawful Protection of the Professional Rights and Interest of Lawyers in Legal
Procedures," March 13, 2006 [最高人民法院关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知,
2006-03-13.]

[50]According to a professional guide on Case filing
procedures: "The merits of the case by the Courts must be measured against two
criterions: (1) legal criteria: whether it falls within the scope of laws and regulations
… (2) political criteria: for questions that involve national defense, foreign
relations, state interest and other matters that go beyond the scope of the
power of the judiciary and are not suitable to be adjudicated by the courts,
cases should not be accepted. This is dictated by the place of the courts (….)
in the political system." Huang Lirong, "Legal Theory Considerations on the
Standards of Case Filing in Civil Litigation," Case-filing Office of the
Supreme People's Court, ed., Guide on Case-Filing
, Beijing:
People's Court Publishing House, November 2004 (China Trial Guide series) [黄立嵘, "关于民事立案标准的法理思考," 载最高人民法院立案厅编: 立案工作指导,
北京: 人民法院出版社,
2004-11 (中国审判指导丛书)],
pp. 89-91.

[51]For instance, a regulation issued by the Supreme Court
in 2002, for instance, provides that the "Peoples' Courts should not accept
civil lawsuits from plaintiffs if they concern disputes that have arisen during
the course of State-Owned Enterprises reforms carried out by responsible
government departments." Supreme People's Court of the People's Republic of China:
Regulations on various problems regarding the hearing of cases of civil dispute
arising in enterprise reforms," effective January 1st, 2003, article 3.

[52]See for instance
Jerome A. Cohen, "China's
Legal Reform at the Crossroad," The Far
Eastern Economic Review, March 2006, pp. 23-27. Cohen notes that "[i]n too
many cases, plaintiffs with justifiable legal grievances are simply denied
access to the courts by one means or another."

[53]According to article 149 of the Criminal Procedure Law,
"difficult, complex or major" cases can be referred to the president of the
court to decide to submit the case to the judicial committee for "discussion
and decision." The collegial panel "shall execute the decision made by the judicial
committee."

[57]At the 17th Party
Congress in October 2007, Luo Gan retired under the Party's age limit rules and
was replaced by the former Minister of the Public Security, Zhou Yongkang, as a
member of the Politburo Standing Committee of the 16th CPC Central Committee as
well secretary of the CPC Political and Legislative Affairs Committee of the
CPC Central Committee.

[59]Huang Jiayou,
"Considerations on some issues related to the education in socialist rule of
law viewpoints," China Laws
(http://www.lawbase.com.cn ), June 13, 2006 [黄家由,
"社会主义法治理念教育若干问题思考," 国法律资源网,
2006-6-13 ], http://www.lawbase.com.cn/law_learning/lawbase_@1486.htm
(accessed November 2, 2007). The author is identified as the Head of the Political
department of the Party Committee of Zhaoxing Municipality's Intermediate Court, Zhejiang
Province.

[64]The Guiding Opinions
introduced specific requirements for mass cases that do not exist for other
types of cases. For example, the Guiding Opinions require that at least three
partners in the law firm sign off before a lawyer accepts a mass case, demand
that lawyers report to government departments when disputes intensify, and
mandate that lawyers exercise "caution" in their contact with the media and
with foreign organizations. Since the adoption of the Guiding Opinions, lawyers
involved in sensitive cases have privately confided that they have come under
pressure from their employers or other partners in the firm to stop doing work
that may potentially jeopardize business. Several provinces and municipalities
since adopted similar regulations, which in many cases are even more
restrictive. Human Rights Watch, "A Great
Danger for Lawyers": New Regulatory Curbs on Lawyers Representing Protesters.

[65]Article 32 of the
Criminal Procedure Law allows "persons recommended by a public organization or
the work unit the defendant belongs to, and their guardians, relatives and
friends" to represent a defendant.

[70]Luo Gan, "The Political and Legal Organs Shoulder an
Important Historical Mission and a Political Duty during the Construction of a
Harmonious Society," Seeking Truth,
Issue 448, February 1, 2007 [罗干,
"政法机关在构建和谐社会中担负重大历史使命和政治责任," 求是，2007-02-01 (总448期)], http://www.qsjournal.com.cn/qs/20070201/GB/qs%5E448%5E0%5E1.htm
(accessed March 6, 2007). See also: Lindsay Beck, "China Urges Judiciary to Handle
Unrest Better," Reuters, February 2,
2007; and Joseph Khan, "Chinese Official Warns Against Independence of Courts,"
The New York Times, February 3, 2007.

[76]"Closure Speech by Vice-Minister Zhao
Dacheng at the All-China National Lawyers Association training in socialist
rule of law values," October 30, 2007 [" 赵大程副部长在全国律师社会主义法治理念培训班结束时的讲话,"
2007-10-30.]

[78]For instance the annual reports published by the
Ministry of Justice, which includes the activities of the Lawyers and notaries
bureau, doesn't make any mention of having entertained complains from assaulted
or threatened lawyers. See Law Yearbook
of China, (Beijing:
China Law Press, various years). [中国司法行政年鉴
(北京: 法律出版社).]

[86] A
reprieve withholds execution of the penalty as long as the defendant exhibits
good behavior. If, however, the defendant breaches bond conditions or commits another
crime, the court is entitled to revoke the suspension and have the defendant
serve the initial sentence in prison.

[97]Human Rights
Watch interview with M.Y., a criminal lawyer from Beijing, March 2007.

[98]"Shanghai lawyers
appeal for greater protection following attack on colleague," The
Associated Press, September 1, 2006.

[99]"Supreme People's
Court Notice on Conscientiously Implementing the Law on Lawyers and Protecting
Lawyers' Professional Rights in Litigation," March 13, 2006 [最高人民法院关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知,
2006-03-13], reproduced at http://www.p5w.net/news/gncj/200604/t288730.htm
(accessed July 26, 2007).

[103]"Who is going to
protect lawyers? The incident of the Beijing
lawyer beaten by a Tianjin
court official," 21st Century Business
Herald, April 19, 2006 ["谁来保护律师
"天津法官被指殴打北京律师"事件", 21世纪经济报道,
2006-04-19], http://www.p5w.net/news/gncj/200604/t288730.htm
(accessed April 8, 2008).

[104]Human Rights Watch interview with X.Y., a law lecturer
in Beijing
involved in impact litigation cases, March 2007.

[112]See Philip P.
Pan, "A Study Group Is Crushed in China's
Grip: Beliefs Are Tested in Saga Of Sacrifice and Betrayal," The Washington
Post, April 23, 2004. Yang was sentenced to eight years imprisonment. He is
due for release on March 13, 2009.

[116]Villagers in
Taishi attempted to organize the recall of a local party power-holder. A long
cycle of crackdowns and protests ensued. Ai Xiaoming, a professor at SunYat-senUniversity in Guangzhou
made an underground four-part documentary about the protest movement there, and
authored a letter to Premier Wen Jiabao calling for central government
intervention. Many of the legal activists involved in the Taishi dispute have
since run into problems, from beatings and intimidation (Lu Banglie,) to
harassment (Guo Yan, Zhao Xin,) to arrest (Gao Zhisheng, Guo Feixiong.)A large compilation of articles related to
the protests in Taishi was made by Fan Yafeng, "Chronology of the Taishi
Incident," Internet Publicatio, dated
September 17, 2005. [范亚峰,
"太石村事件备忘录,"
博讯,
2005-9-17.] A partial translation in English was made available on the
"EastSouthWestNorth" website (www.zonaeuropa.com) at http://zonaeuropa.com/20050919_1.htm.
See also "Chinese Authorities Arrest Rights Lawyer in 'Test-Case' TaishiVillage,"
Radio Free Asia, October 5, 2005, http://www.rfa.org/english/china/2005/10/05/china_taishi/
(accessed October 31, 2007).

[117]"Strongly requesting the protection of the security of
the legal profession according to law, and the amelioration of the environment
of the legal profession," Letter to the central government, dated December 29,
2006 ["强烈要求依法保护律师执业安全, 改善律师执业环境," 2006-12-29.]

[119]By the government's own admission, local mafia-type
secret societies are widespread in China, and intimidation of a
competitor or debtor is an oft-seen occurrence in economic disputes, forced
eviction of residents, land seizures from villagers and labor disputes.
Collusion between law enforcement officials and local mafias-an association
colloquially referred to in Chinese as "black umbrellas [hei yusan]"-is recognized as a severe problem across China. In May
2007, the Supreme People's Procuracy (SPP) disclosed that 62 government
officials had been accused of protecting criminal gangs over the past year. One
of the most prominent cases was the former vice-director of Jiangxi province's Public Security Bureau.

[125]Article 306 provides that "If, in criminal proceedings,
a defender or law agent destroys or forges evidence, helps any of the parties
destroy or forge evidence, or coerces the witness or lures him into changing
his testimony in defiance of the facts or give false testimony, he shall be
sentenced to fixed-term imprisonment of not more than three years or criminal
detention; if the circumstances are serious, he shall be sentenced to
fixed-term imprisonment of not less than three years but not more than seven
years. Where a witness's testimony or other evidence provided, shown or quoted
by a defender or legal agent is inconsistent with the facts but is not forged
intentionally, it shall not be regarded as forgery of evidence."

[132]Didi Kirsten Tatlow, "Justice on trial: Two defense
lawyers have taken up the cause of hundreds of men and women facing execution,
who they say have been jailed under a flawed judicial system," South China Morning Post, October 30,
2007.

[134]A legal scholar
put the proportion lower, based on a study of 70 cases from 1984 to 2006 where
33 were for fabrication of evidence. Fu Hualing, "When Lawyers are Prosecuted:
The Struggle of a Profession in Transition," Social Science ResearchNetwork,
May 2007, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956500
(accessed November 7, 2007).

[135]Fu Hualing writes
that "[P]olice and prosecution principally used the offences of covering up and
malpractice for personal gains before 1997 to punish aggressive lawyers for
challenging prosecution's case or for falsifying evidence, and when the amended
CL [Criminal Law] became effective on 1 October 1997, they immediately switched
to Article 306, abandoning the former charging practice." Fu Hualing, "When
Lawyers are Prosecuted: The Struggle of a Profession in Transition," Social Science Research Network, May
2007.

[136]Fu Hualing, "When
Lawyers are Prosecuted: The Struggle of a Profession in Transition," Social Science Research Network, May
2007.

[143]Ample
illustration of these claims can be found in professional publications such as China Lawyer (中国律师), published by the
All-China Lawyers Association and Lawyer Digest (律师文摘), published by the
Ministry of Justice-owned China Law Press.

[144]According to
article 149 of the Criminal Procedure Law, "difficult, complex or major" cases
can be referred to the president of the court to decide to submit the case to
the judicial committee for "discussion and decision." The collegial panel
"shall execute the decision made by the judicial committee."

[159]For instance the Kunming municipality (YunnanProvince)
regulations on "Protecting lawyers rights during the criminal process," issued
in 2007, set forth that the Procuracy must respond within 48 hours, except in
cases involving criminal cases or involving state secrets.

[170]"Arrested for
receiving two tons of Bible books, Zhou Heng is able to meet with his lawyer at
the custody centre for the first time," Radio
Free Asia (Mandarin Service,) September 18, 2007 ["因接两吨圣经被捕周恒在看守所首次会见律师,"
自由亚洲电台,
2007-09-18], http://www.rfa.org/mandarin/shenrubaodao/2007/09/18/zhou/
(accessed September 18, 2007).

[175]The revisions to
the Law on Lawyers in October 2007 have established the right for lawyers to
meet with criminal suspects without restrictions, although the new provision is
now in conflict with the Criminal Procedure Law as detailed below.

[187]"Supreme People's
Court Notice on Conscientiously Implementing the Law on Lawyers and Protecting
Lawyers' Professional Rights in Litigation," March 13, 2006 [最高人民法院关于认真贯彻律师法依法保障律师在诉讼中执业权利的通知
, 2006-03-13.]

[198]As in many civil law systems, there is no equivalent in China
of the American system of discovery. The term "discovery" is employed here to
designate all actions undertaken by the defense to obtain documentary from
third parties in view of legal proceedings.

[199]Article 37 of the Criminal Procedure Law sets forth that
the defense can ask procuracy courts to gather, get evidence or apply to court
let know whiteness to attend court to make testimony.

[200]Human Rights
Watch interview with H.L., a lawyer from Southern China,
February 2007.

[204]Human Rights
Watch interview with W.Y., a lawyer working on "class action" cases, March
2007.

[205]Tight
restrictions on media freedom also affect foreign correspondents working in China.
See Human Rights Watch, "You Will Be Harassed and Detained": Media
Freedoms Under Assault in China
Ahead of the 2008 Beijing
Olympic Games," August 2007, vol. 19, no. 12(C), http://hrw.org/reports/2007/china0807/index.htm.

[206]This is the case
of Sichuan
law professor and legal activist Wang Yi, for instance. "China Closes Dissident Blog Nominated for
Award," Radio Free Asia,
October 31, 2005.

[207]For a general
discussion of the relationship between the media and the legal system see
Benjamin L. Liebman, "Watchdog or Demagogue? The Media in the Chinese Legal
System," Columbia Law Review, 105:1, January 2005, pp. 1- 157. Liebman reports that
"[l]awyers also comment that maintaining good relations with the media is
important, particularly when representing weak or disadvantaged clients who are
in disputes with locally influential persons or individuals" (p. 93).

[208]Human Rights Watch interview with S.R., a mainland
reporter in Beijing,
March 2007.

[215]The October 2007
revisions to the Law on Lawyers have introduced the possibility of setting up
one-person law firms for lawyers who have at least five years of professional
experience (Article 16.) Some cities had been experimenting with the system in
previous years.

[216]Grounds for denial of registration stipulated by the
judicial authorities include non-completion of yearly mandatory training,
breach of professional standards, ineligibility because of on-going suspension
or default of membership to the bar association.

[218]Human Rights
Watch interview with L.J., a lawyer in Beijing,
January 2008.

[219] "Methods for the
management of lawyers' professional licenses," Ministry of Justice, Order No
46, November 25, 1996. [律师执业证管理办法, 1996年11月25日司法部令第46号发布.]

[220]See for instance:
"The Judicial Bureau of Zhengzhou Municipality Convenes a Work Conference on
Strengthening Lawyers Ranks," article posted on the website of the Zhengzhou
Lawyers Association, April 19, 2006. ["郑州市司法局召开加强律师队伍建设工作议,"郑州律师网,
2006-04-19], www.zzlawyer.org/show.aspx?id=1265
(accessed May 26, 2006).

[226]Under local
regulations, law firms are responsible for the registration of lawyers to the
local bar association. Lawyers cannot register individually and solo practices
are not allowed. "LawyeratRiskofLosingLicense,FacingPunishmentforDefendingFarmers,"
China Rights Defenders (crd-net.org),
March 29, 2007, http://crd-net.org/Article/ShowArticle.asp?ArticleID=3799
(accessed May 16, 2007).

[230]Lin Hui, "Lawyer
Zhang Jiankang discuss house arrest and the case of Gao Zhisheng," The Epoch Times (Chinese Web Edition),
October 13, 2006 [林慧,
"张鉴康律师谈软禁经过及高智晟案," 大纪元,
2006-10-13], http://www.epochtimes.com/gb/6/10/13/n1485688.htm
(accessed May 16, 2007). The Epoch Times, a publication with ties to the banned
sect Falun Gong, does not meet minimum standards of editorial independence.
However, Zhang Jiankang has since confirmed in various other interviews the
facts reported in this particular story.

[232]"Lawyer in Charge
Helps in Wenzhou Case, Will it Be Zhang Jiankang's Last Case?" The Epoch Times (Chinese Web Edition),
April 8, 2007 [ "主办律师温州当助手张鉴康最后一案?"
大纪元,
2007-4-8], reproduced at http://crd-net.org/Article/ShowArticle.asp?ArticleID=3887
(accessed May 16, 2007). See note 230 regarding the authoritativeness of this report.

[234]After the loss of his professional license Zheng
continued to provide legal advice to forcibly displaced Shanghai residents . He was jailed for three
years in 2003 under trumped-up state secrets charges. To this date he is still
under house arrest at his home in Shanghai
and prevented from traveling or meeting foreign visitors. See "Prisoner
Profile: Zheng Enchong," China Rights Forum, No 4, 2003, pp. 124-129.

[235]The reaction of lawyers to the introduction to this new
requirement in 2008 is reflected in"Revisions a Step forward but not Enough: Lawyers Mixed Response to
Changes to Protect Legal Practitioners," South
China Morning Post, October 30, 2007.

[236]Ministry of
Justice, "Methods regarding the punishment of illegal acts by lawyers and law
firms," March 19, 2004. [律师和律师所无所违法行为处罚办法, 2004年3月19日司法部第86号令发布.] In September 2007, in a
rare initiative, five lawyers fromAnhui province have
launched a lawsuit against the Provincial judicial bureau to challenge their
disbarment. "Five lawyers from Anhui
sue the provincial judicial bureau for their disbarment," Xin An Evening News, September 7, 2007 ["安徽5名律师因被吊销执业证起诉省司法厅," 新安晚报,
2007-09-07], http://ah.news.163.com/07/0907/08/3NPAELSB0057007D.html
(accessed September 13, 2007).

[237]Revisions to the "Methods"
are expected to follow the revisions to the Law on Lawyers promulgated in
October 2007. There are indications that the requirements listed here will
remain in place, as they were initially introduced in the draft revisions to
the Law on Lawyers but were not included in the version promulgated in October
2007.

[238]Both provisions
were taken from the "Methods regarding the punishment of illegal acts by
lawyers and law firms."

[239]Guo
Feixiong was then released, before being arrested again a few months after. He
was sentenced to five years imprisonment for "illegal business activities" in
November 2007.

[244]Shi Tao was ultimately sentenced to 10-year imprisonment
in April 2004. He received the Golden Press Freedom award from the World
Association of Newspapers (WAN) in March 2007. Zhang Lin was sentenced to
five-year prison sentence on 28 July 2005 on charges of "harming national
security."

[245]The four cardinal principles laid down in the preamble
of the Constitution intimate that China cannot deviate from Marxist
ideology, CPC rule, people's dictatorship and the socialist road.

[249]The Ministry of Justice in its annual report on the
"Measures for the development of the legal profession," stopped providing the
overall figure for the numbers of lawyers it has sanctioned after the year 2005
(47 lawyers were disbarred that year). Local reports by Judicial bureaus at the
provincial or municipal level seem to indicate temporary suspensions are
frequent. For instance, according the Sichuan
province judicial bureau, two lawyers lost their licenses and seven were
temporarily suspended. In the city of Fuyang (Anhui province) alone,
during a 40-day "rectification drive [整顿运动],"
ten lawyers and one law firm were temporarily suspended. In Dalian
municipality (Heilongjiang
province), four lawyers were temporarily suspended in 2006. Sources: Yearbook of Judicial Administration
(Beijing: China Law Press) [中国司法行政年鉴
, 北京：法律出版社],
various years; "Last year 47 lawyers were disbarred for violating law and
discipline," Xinhua Net, May 31, 2005
["去年我国有47名违法违纪律师被吊销执业证书," 新华网,
2005-05-31], http://news.xinhuanet.com/newscenter/2005-05/31/content_3026105.htm
(accessed May 17, 2007); The Judicial Bureau passes sanctions against lawyers
from Hualei district for 21 types of illegal acts, Xinhua, March 22, 2004 ["司法部为律师行为划雷区二十一种违法行为将受罚," 新华网,
2004-03-22.]

[250]Publications from
the Ministry of Justice stress that offering bribes to judicial personnel is
the most common offense behind the sanctioning of lawyers.